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Corporation 


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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notas/Notes  technique*  et  bibliographiquec 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  avaiiable  for  filming.  Features  of  this 
copy  which  may  be  bibiiographicaily  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 


D 


n 


n 


D 


Coloured  covers/ 
Couverture  de  couleur 


I      I    Covers  damaged/ 


Couverture  endommag6e 

Covers  restored  and/or  laminated/ 
Couverture  restaurte  et/ou  pellicula 

Cover  title  missing/ 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  gtographiques  en  couleur 


Coloured  ink  (i.e.  other  than  blue  or  blackl ' 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


I      I    Coloured  plates  and/or  illustrations/ 


Planches  et/ou  illustrations  en  couleur 


Bound  with  other  material/ 
RelM  avec  d'autres  documents 


r~Zi    Tight  binding  may  cause  shadows  or  distortion 


along  interior  margin/ 

La  re  liure  serrie  peut  causer  de  I'ombre  ou  de  la 

distortion  le  long  de  la  marge  intArieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajouttes 
lors  d'une  restauration  apparaissent  dans  ie  texte, 
mais,  lovsque  cela  Atait  possible,  ces  pages  n'ont 
pas  4U,  filmAes. 

Additional  comments:/ 
Commentaires  supplAmentaires: 


L'Institut  a  microfilm^  le  meilleur  exempiaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
de  cet  exempiaire  qui  sent  peut-Atre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  methods  normale  de  filmage 
sent  indiqu#s  ci-dessous. 


I — I   Coloured  pages/ 


D 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagtes 

Pages  restored  and/oi 

Pages  restaurtes  et/ou  pallicultes 

Pages  discoloured,  stained  or  foxet 
Pages  dAcoiortes,  tachettes  ou  piqutes 

Pages  detached/ 
Pages  d6tach6es 

Showthrough> 
Transparence 

Quality  of  prir 

Quality  inigale  de  I'impression 

Includes  supplementary  materii 
Comprend  du  materiel  suppi^mentaire 

Only  edition  available/ 
Seule  Edition  disponible 


I — I  Pages  damaged/ 

I — I  Pages  restored  and/or  laminated/ 

I — I  Pages  discoloured,  stained  or  foxed/ 

r~l  Pages  detached/ 

r^  Showthrough/ 

r^  Quality  of  print  varies/ 

I     I  Includes  supplementary  material/ 

r~~1  Only  edition  available/ 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  At  A  filmAes  A  nouveau  de  fapon  A 
obtenir  la  meilleure  imago  possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film*  au  taux  de  reduction  indiquA  ci-dessous. 

10X  14X  18X  22X 


26X 


30X 


v/ 


12X 


16X 


20X 


a4x 


28X 


32X 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

Law  Society  of  Upper  Canada 
Great  Library 


L'exempiaire  film*  fut  reprodult  grAco  A  la 
gAnArosit*  de: 

Law  Society  of  Upper  Canada 
Groat  Library 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  Iceeping  with  the 
filming  contract  specifications. 


Las  images  suivantes  ont  tit6  reproduites  avec  la 
plus  grand  soin,  ccmpte  tenu  de  la  condition  at 
de  la  nettet6  de  l'exempiaire  film*,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplalres  orlginaux  dont  la  couverture  en 
papier  est  ImprlmAe  sont  filmAs  en  commencant 
par  le  premier  plat  et  en  terminant  soit  par  la 
dernlAre  page  qui  comporte  une  emprelnte 
d'impression  ou  d'lllustration.  soit  par  le  second 
plat,  salon  le  cas.  Tous  les  autres  exemplalres 
orlginaux  sont  fllmto  en  commenpant  par  la 
premlAre  page  qui  comporte  une  emprelnte 
d'impression  ou  d'lllustration  at  en  terminant  par 
la  dernlAre  page  qui  comporte  une  telle 
emprelnte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  t'e  symbol  •— ^  (meaning  "CON- 
TINUED"), or  (tie  symbol  y  (meaning  "END"), 
whichever  applies. 


Un  des  symboles  sulvants  ipparaftra  sur  la 
dernlAre  image  de  chaquo  microfiche,  selon  le 
cas:  la  symbols  — »•  signifle  "A  SUIVRE",  le 
symbols  V  signifle  "FIN". 


Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
filmte  i  des  taux  de  reduction  diffirents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reprodult  en  un  seul  clichA,  11  est  filmA  A  partir 
de  Tangle  supArleur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'Images  nAcessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

c. 


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(?.  ^/!W 


^,u  .Q   ,■ 


AMERICAN 


CRIMINAL  REPORTS. 


A  SERIES  DESIGNED  TO  CONTAIN  THE  LATEST 
AND  MOST  IMPORTANT 

CRIMINAL    CASES 

DETERMINED  IH 

THE  FEDERAL  AW  STATE  COURTS  IN  THE  UNITED  STATES, 

AS  WELL  AS 

SELECTED   CASES, 

iMPORTAJrr  TO  American  Lawyers, 

FROM  THE  ENGLISH,  IRISH,  SCOTCH  AND  CANADIAN 
LAW  REPORTS, 

WITH 

NOTES  ANT>  EEFEREI^^OES. 


BY 


JOHN  GIBBONS, 

Of  the  Chicaoo  Bar. 


Vol.  IV. 


CHICAGO: 

CALLAGHAN  AND  COMPANY, 
Law  Book  Pubushers. 

1885. 


t 


I 


l^t 


Entered  according  to  Act  of  Congress  in  the  year  eighteen  hundred  and  eighty-Hve,  by 

CALLAGHAN  AND  COMPANY, 

in  the  office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


DAVID  ATWOOD, 

miNTER  AND  STEREOTYPER, 
MADIiON,  WW, 


WAV  2  8  J576 


PREFACE. 


The  volumes  of  American  Criminal  Reports  heretofore  published  wero 
received  by  the  profession  and  legal  press  with  gratifying  manifestations  of 
favor  and  approval;  and,  in  undertaking  the  editorial  work  at  this  juncture 
in  the  series,  I  entertair  'he  hope  that  this  volume  will  be  welcomed  with 
no  less  cordiality,  and  prove  no  less  useful,  than  its  predecessors. 

In  discharging  the  duty  of  compiler,  I  have  aimed  to  collate  the  latest 
and  most  imi^rtant  cases,  and  to  give  in  full  the  decisions  of  the  courts  I 
have  sought,  also,  to  make  accurate,  reliable  and  valuable  the  notes  that  it 
lias  seemed  fit  to  insert.  To  this  end,  indeed,  I  have  deemed  it  my  duty  to 
examine  carefully  the  different  cases  cited.  If  I  have  given  license  to  the 
expression  of  my  views  on  certain  questions,  my  apology  must  be  that, 
having  given  earnest  consideration  to  the  points  in  controversy,  and  the 
decisions  bearing  upon  them,  it  appeared  to  be  hardly  less  than  a  duty  to 
state  what  I  regard  as  the  better  rule  of  law  in  the  premises. 

The  index,  which  is  very  full,  has  been  prepared  with  a  view  to  present- 
ing to  the  practitioner,  and  enabling  him  to  determine  at  a  glance,  the  con- 
tents of  the  volume  bearing  upon  each  topic  treated. 

I  take  great  pleasure  in  acknowledging  indebtedness  to  my  esteemed 
friend  and  former  schoolmate.  Col.  William  Hoynes,  Professor  of  Law  in 
the  Univereity  of  Notre  Dame,  Indiana,  for  many  valuable  suggestions 
during  the  progress  of  the  work.  ^^^^  ^^^^^^^ 

Chicago,  October  30, 1885. 


1 


TABLE  OF  CASES 

EEPORTED  IN  THIS  VOLUME. 


PAGE. 

Adams  v.  State 331 

Adams  v.  The  State 309 

Adams  et  al.  v.  The  People 351 

Adams,  The  State  v 392 

Ah  Wah  and  Ah  Yen,  TeiTitory  v.  574 

Aldrich  et  al.  v.  The  People 534 

Allen  V.  The  State 252 

Amery,  State  v 112 

Anderson  v.  Com 460 

Ashton  V.  The  State 90 

m 

Balch,  state  V 516 

Blackwell  v.  Tlie  State 183 

Boyd  V.  The  Com 143 

Brittain,  State  v 458 

Brittleton  et  al..  The  Queen  v . . .  605 

Brosnahan,  Jr.,  In  re 16 

Brown,  State  v 299 

Buckrice  v.  The  People 106 

Burke  v.  Tlie  State 579 

BuzzeU,  State  V 410 

0. 

Campbell  v.  The  People 838 

Carll,  Ex  parte 253 

Carll,  United  States  v 246 

Carpenter  et  al..  State  v 559 

Casey,  The  People  v 312 

Cheaney  v.  The  State 264 

Cook,  The  State  v 485 

Corkin,  Com.  v 15 

Costin,  State  v 169 

Coylev.Com 379 

D. 

Dame,Statev 444 

Daniel  et  al.  v.  State 247 


PAQS. 

D'Argencour,  The  People  v 240 

Davis,  People  v 514 

Day,  State  v 104 

De  Banks,  The  Queen  v 601 

Dickey  v.  The  State 249 

Dolan,  The  People  v 308 

Donovan,  State  of  Iowa  v 25 

Dowlen  V.  The  State 49 

Downs,  State  v 42 

Drake  v.  The  State 320 

Dreesv.  The  State 571 

Dunaway  v.  Tlie  People 60 

Dunn  V.  The  People 52 

E. 

Edwards  v.  Com 460 

Exnicios,  The  State  of   Louisi- 
ana V 160 


Fanning  v.  The  State 6dl 

Fay.Statev 300 

Feoms    et    al..    Appellants,    v. 

O'Brien 611 

Fleetwood  v.  The  Com 36 

Fletcher,  State  of  Illinois  v 157 

Flores,  People  v 485 

Freeman  v.  The  State 470 

Fulford,  The  State  V 43 

G. 

Garvey's  Case 254 

Gedicke,  State  V 6 

Gonce,  The  State  V 68 

Gordon,  State  v 1 

Graham,  State  v 276 

Graves  V.  State 386 

Grise  v.  The  State 146 

Guthrie  V.  State 78 


n 


mL^>: 


VI 


AMEBICAN  CRIMINAL  REPORTS. 


H. 

PAOE. 

Haflev.  State 09 

Hairv.  State 127 

Hall,Peoplev 357 

Hamilton,  United  States  v 477 

Hannett,  State  v 38 

Hartnett,  The  State  v 572 

Herron  V.  The  Cora 238 

Hess  V,  State 178 

HUI  and  Blake,  State  v 102 

HoUis,  The  Queen  v 609 

Holmes,  The  Queen  v 591 

Hoptv,  People 305 

Hopt  V,  Utah 417 

Hutcliinson,  State  v 162 

J. 

Jackson,  In  ro 508 

Jacobs  V.  State 405 

James,  State  v 318 

Jenkins,  State  v ....  330 

Johnson  v.  The  Com 140 

K. 

Keenan  v.  The  People 434 

Ker  V.  The  People 211 

L. 

Landsberg,  United  States  v.  .7..  474 
Leong  Quong,  People  v 334 

M. 

Magrath,  State  v 279 

Malloiy,  The  Queen  v 580 

Manning,  The  Queen  v 583 

Martin,  The  State  v 86 

Maurer,  The  Queen  v 588 

McDaniel  v.  The  Com 369 

McGinnis,  State  v 349 

Moore,  Com.  v 230 

Moran,  The  People  v 476 

Mosley,  State  v 529 

Mullen,  State  of  Louisiana  v 181 

Muller,  The  People  v 453 

Munday,  State  v 234 

Murphy  v.  The  People 323 

o. 

O'Laughlin,  People  v 542 

Oliver  v.  The  State 583 


P. 

PAOE. 

Payne  v.  The  State 155 

Priest,  Ex  parte 13-1 

R 

Railroad  Co.,  State  v 137 

Raymond,  The  People  v 124 

Reese  and  others.  People  v 527 

Reynolds  v.  The  State 152 

Rice  V.  Com 562 

Richardson  v.  The  Com 479 

Ritzman  v.  The  People 403 

Robinson  v.  State 570 

Rolfs,  Petitioner,  In  re 446 

Rooks  V.  The  State 483 


Scarlett,  State  v 278 

Shaffer,  State  v 83 

Shipley,  Territory  v 491 

Sifred  v.  Com 304 

Simmerman  v.  State 91 

Smith,  Statev 275 

Sontag,  Ex  parte 523 

State  of  Nevada  v.  Charley  Hing  375 
State  of  Nevada  v.  District  Court  230 

Steisiger,  The  State  v 482 

Stephenson     and     others,     The 

Queen  v. 593 

Stewart,  State  v Ill 

Stewart  v.  The  State 271 

Swanv.  Com 188 

T. 


1 


Taylor  v.  The  State 30 

Tobin  V.  The  People 555 

TraHlt  V.  The  People 293 

Trczevant,  State  v 566 

u. 

Upstone  V.  The  People 395 

T. 

Vanderpool,  The  State  v 203 

Van  Houten  v.  State 272 

Vines  et  al.,  The  State  v 296 


■V 
\ 
■V 
\ 
■V 


'.> 


I 


^1 


1 


TABLE  OF  CASES. 


Vll 


PAOE. 

Walters  V.  Tlie  State 33 

Watson  V.  State 71 

Wheeler,  People  v. 191 

Wiggins  V.  People,  etc.,  in  Utah  494 

Williams  v.  The  State 65 

Williams  v.  The  State 293 


PAOE. 

Williams  v.  The  State 415 

Wilson,  Ex  parte 283 

Woodson  V.  The  State 477 

z. 

Ziebold,  In  re 118 


A 


T 


Ml 


TABLE  OF  CASES 


CITED  AND  REFERRED  TO. 


A. 

PAOR. 

Abhott,  People  v.,  S3  Cal.,  SM 841 

Abcrnathy  v.  Latlmore,  10  Ohio,  880 ... .  17(1 

Adams,  State  v.,  03  Ind.,  110 310 

Addington,  State  v.,  77  Mo.,  110 St 

Adriance  v.  Lugrave,  50  N.  Y.,  110. . .  .'.'05, 8111 

Aguila,  State  v.,  11  Mo.,  130 4tf 

Ah  Lee,  In  re,  f)  Fed.  Hop.,  800 1*1 

Alden  v.  The  State,  IH  Fla.,  187 77 

Alexander,  Stote  v.,  GO  Mo.,  131 87 

Alexander  V.  Com.,  10.-)l'a.  St.,  1 318 

Allen,  The  People  v.,  6  Denio,  70  177 

Allen  V.  State,  5»  Ind.,  401 578 

Anderson,  State  v.,  83  Minn.,  00 38.') 

Anderson  v.  The  Com 401 

Andrews,  Com.  v.,  07  Mush.,  MS 470 

Angelo  V.  People,  00  111.,  800 3115 

Anonymous,  31  Me.,  508 470 

Anon.,  7  Mod.  Rep.,  15 670 

Anthony,  People  v.,  50  Cal.,  400 515 

Archer,  State  v.,  54  N.  H.,  405 413 

Arkell  v.  Ins.  Co.,  00  N.  Y.,  108 43 

Armstrong  V.  State,  1  Coldw.,  33S 10(1 

Arnold,  People  v.,  15  Cal.,  470 400 

Arnold  v.  State,  0  Tex.  Ct.  App.,  4!n. . . .  6'W 
Ashworth  v.  Kitteiidgc,  18  Cusli.,  103  (00 

Mass.) 100 

Atherton,  People  v.,  51  Cal.,  405 877 

Atkins  V.  State,  10  Ark.,  tm 613 

Attorney-Gen.  v.  The  Qlass-Plato  Co,, 

1  Anstr.,  30 801 

Austin,  Com.  v.,  07  Mass.,  505 413 

Austin  V.  People,  108  111.,  801 680 

Avery,  U.  S.  v.,  13  Wall.,  8B1  477 

Aveson  v.  Kinnaird,  0  East,  188 7 

B. 

Bacon  v.  Charlton,  7  Cush.,  881 7 

Bailey,  Rep.  v.,  18  Cox,  C.  C,  50. .  170 

Bniley,  State  v.,  81  N.  H.,  581 441 

Bailey,  State  v.,  81  N.  H.,  313 415 

Bailey  v.  The  State,  58  Ala.,  414 885 

Bakeman,  Com.  v.,  105  Mass.,  63 413 

Baker  v.  Bramen,  0  Hill,  47 113 

Baker.State  v.,80Mo.,838 687 


FAOE. 

Boker,  State  v.,  1  Jones  (N.  0.),  278 607 

Bolbo  V.  People,  80  N.  Y.,  484 314 

Bald,  Regina  v.,  8  Den.  C.  C,  430 487 

Baldey,  Regina  v.,  5  Cox,  0.  C,  583 483 

BaKly,  State  v.,  17  Iowa,  30 89 

Ball,  Rex  v.,  Russ.  &  R.  Cr.  Cas.,  188. .. .     83 

Bunk  V.  Com.,  10  Barr,  448 305 

Biirbee  v.  Hereford,  48  Mo.,  883 303 

Barbler  V.  Connolly,  113  U.  S.,87 184 

Barber  v.  Men  ian,  11  Allen,  383 7 

Barker,  The  State  v.,  04  Mo.,  883 87 

Bamett  v.  People,  54  III.,  385 801,  414 

Ilurret,  People  v.,  1  Johns.,  60 807 

Barrle,  People  v.,  40  Cal.,  843 433 

Burron  v.  The  ':!lty  of  Boltlmore,  7  Pe- 
ters, 873 183 

Barry,  Com.  v.,  184  Moss.,  385 38') 

llortemeyer  v.  State,  18  Wall.,  133 23 

Burton  v.  The  State,  18  Ohio,  881 100 

Burton,  The  State  v. ,  71  Mo.,  888 30 1 

Uutchedor  v.  Tenny,  87  Vermont,  378  .. .    177 
Buiigh,  United  States  v.,  4  Hughes,  501 . .    888 

Bean,  Com.  v.,  11  Cush.  (Mass.),  414 810 

Bean,  Com.  v.,  14  Gray  (Mass.),  53 240 

Bflencitt,  People  v.,  81  Cal.,  544 307 

Bull  V.  Mallory,  01  III.,  107 534 

Hell,  The  State  v.,  05  N.  C,  314 330 

Bell  V.  Stole,  44  Ala.,  8a3 578 

Bcller,  In  re,  1  Kan.  Law  J.,  830 183 

Ben  V.  The  Stote,  37  Ala.,  103 153 

B  -nnett  v.  Bullock,  85  Pemi.  St.,  304. .. .    573 

Bennett  v.  People,  90  III.,  003 550 

Bernard  v.  Porvin,  1  Morris  (lowo),  399..    170 

Berry.  Com.  v.,  09  Mass.,  438 175 

Bertrand,  Reg.  v.,  L.  R.,  1  P.  C,  680 33 

BIgelow,  Ex  parte,  1 13  U.  8.,  338 883 

BInkemon.  Reg.  v.,  18  Cox,  C.  C,  467. . .        10 
Blakemore,  Reg.  v.,  8  Den.  Cr.  C,  410. . .    413 

Blotichard  v.  Fisk,  8  N.  H.,  39S 310 

Blonford  v.  The  State,  10  Texas,  087  ... .    809 
Block,  United  States  v.,  4  Sawyer,  811 . .    288 

Bogart,  People  v.,  30  Cal.,  845 170 

Boliammon  v.  Com.,  8  Bush,  488 613 

Boles  V.  I'lnkerton,  7  Dano,  453 68 

Bond  V.  State,  17  Ark.,  800 118 


AMERICAN  CRIMINAL  REPORTS. 


PAGB. 

Bonner,  Com.  v.,  07  Mass.,  687 475 

Boone  Co.  v.  Jones,  54  lowo,  699 104 

Boornclt  v.  Com.,  8  Leigh,  745 89J 

Borland  v.  Mayo,  8  Ala.,  101 154 

Bostick,  State  v.,  4  Harr.,  503 4*3 

Bower  v.  The  State,  5  Mo.,  334 392 

Bowles  V.  State,  5  Sneed  ( Tenn. ),  300 . . . .    578 
Bowman  v.  Woods,  1  O.  Green  Rep.,  443.    193 

Boyli',  The  State  v.,  S8  Iowa,  523 3:)t 

Bradford,  Com.  v.,  180  Mass.,  42 1.". 

Brandt,  State  v.,  41  Iowa,  007 177 

Brandt  v.  Com.,  13  Norris,  290 190 

Brayman,  Com.  v.,  13G  Mass.,  438 433 

Bren,  Reg.  v.,  9  Cox,  C.  C,  303 170 

Brewster,  State  v.,  7  N.  II.,  118 311,  219 

Bridges,  State  v.,  29  Kan.,  133 531 

Briilgman,  State  v..  49  Vt.,  203 82 

BrigRs  V.  OaiTfltt,  18  Cent.  Law  J..  103. .    523 
Brow  V.  Hathaway,  95  Mass.  (13  Allen), 

239 5:3 

Brown,  Cora,  v.,  121  Mass.,  81 197 

Brown  v.  Com.,  ^3  Pa.  St.,  3.'5 131 

Brown  v.  County  Commissioners,  9  Har- 
ris, 37 395 

Brown's  Case,  Vent.,  213 4 

Brown  v.  State,  8  Bl.iclif ..  501 570 

Brown  v.  State,  10  Ind.,  490 578 

Brown  V.  State,  52  Ala,  3 19 l.)4 

Brown.  State  ex  rel.  v.  Stewart,  Circuit 

Judge,  (»  Wis.,  587 110,  21 1 

Bruce,  State  v.,  48  Iowa,  .',3D 35 

BrulTey,  Stute  v.,  75  Mo.,  3  59 8 < 

Bunnels,  Com.  v.,  10  Mass.,  518 6.jO 

Burdett,  Rex  v.,  4  D.  &  A.,  05 .592 

Burdick,  Com.  v.,  2  Ban-,  104 £31 

Burgess,  Reg.  v.,  9  Cox,  C.  C,  303 170 

Burke,  Com.  v.,  14  Gray,  100 413 

Burrell's  Case,  7  Barr.  ,31 380 

Burrows,  State  v.,  11  Irrd.,  477 831 

Burt  V.  lHnj:iud,  99  U.  S.,  ISO 319 

Burt  et  al..  State  v.,  35  Vt .  373 5«) 

BuARex  v.,Russ.  &  R.  C.  C,  372 80 

Button,  Rpg.  v.,  11  A.  &  E.  (N.  S.),  929  . .    414 
Buxton,  State  v.,  8  Swann  (Tenn.),  57  . . .    1 10 

Buzzell,  State  v.,  .5S  N.  11.,  2.-»7 412 

Buzzo,  United  States  v.,  18  Wall.,  133  .. .    2S7 
Bryan,  Kx  parte,  17  Nev.,  139 570 


c. 

Cain  V.  State,  18  Tex.,  387 433 

Caldwell,  United  States  v.,  8  Blatchf., 

131 20.5,219 

Calkins  v.  State,  18  Ohio  St.,  .300 531 

CuUahan  v.  The  State,  21  Ohio  St.,  31(i . .  03 

Calvin,  The  State  v.,  Zobr.  (N.  J.),  807  . .  187 

Campbell  v.  Com.,  15  Norris,  314 3B0 

Campbellv.  People,  10111.,  18 4!W 

Campbell,  People  v. ,  40  Cal. ,  120 558 


PAOB. 

Campbell  v.  The  State,  33  Ohio  St.,  70. . .  170 

Cartile  V.  Wood,  o;i  Mo.,  513 09 

Carlisle  v.  The  United  States,  10  Wall., 

147 403 

Carll,  Ex  parte,  100  U.  8.,  521 883 

Carman,  The  State  v.,  (Hi  Iowa,  130 118 

Carpenter  v.  Calvert,  H3  111.,  0.1 400 

Carpenter  v.  State,  4  How.  (Miss.),  103. .  578 

Carroll  v.  State,  23  Ala.,  33 50: 

Cass  v.  Randall,  4  Gray  (.Mass.),  13S fil 

CoKsody,  State  v.,  12  Kan.,  .'wO 620 

Cttucemi  V.  People,  18  N.  Y..  13^ 575 

Chase  v.  The  People,  40  lil ,,  3"3 57 

Chesley,  Com.  v.,  107  llass  ,  2;.3 414 

Choate,  Com.  v.,  103  Mass..  451 15 

City  of  Ripon  v.  Bettel,  3)  Wis.,  019. ...  800 

Clapp,  Com.  v.,  4  Mass.,  1C3 683 

Clark  v.  Com. ,  5  Casey,  1  ,'8 380 

Clark  V.  Peiiam.  2  Atk.. ;«) 415 

Clark  V.  State,  8  Humph.  (Tonu.>,  071 .. .  .392 

Claryv.  Ciary,  2Ire(1..78  399 

Clerk,  Reg.  v.,  1  Sal k.,  377 597 

Cleveland,  State  v.,  5 f  Jle.,  5!H 630 

Clewes.  Hex  v.,  4  Carr  T<  Vayue,  221 ....  428 

ClilTord,  Com.  v.,  H  Cusli.  (Muss),  21.">. . .  210 

Cofh,  People  v..  .M  Cal  ,  027 5.W 

Cocheco  v.  StralTord.  51  N.  H.,  ISl 319 

Cocks  V.  Purday,  2  Cinr.  &  K. ,  209 101 

Codd  V.  Cabe,  1  Ex.  Div.,  332 8" 

Cohen,  People  v..  8  Cal ,  1> 170 

Coleman  v.  The  People.  .33  N.  J.,  81 513 

folcmaii  V.  The  it;i!i>.  13  Ala.,  m.' 251 

Colia  V.  State,  10  AIo.,  7H1 ...  mi 

Collier  V.  Simpson,  5  C.  &  P.,  71     194 

Collins.  State  v..  3.'  Iowa,  3< 518 

Collyer,  State  v..  17  Nev.,  273 570 

Connaghan  v.  Thu  I'tv  pli-.  88  III.,  l(i;), . .  5< 
Ciimpton,  Aidt  &  Co.  v.  Wilder,  40  Ohio 

St.,  I.'IO 210 

Cook,  United  States  v..  17  Wallace,  173.  278 

Cooke,  Rex  v.,  5  B.  &  C,  .';'!* WS,  ,381 

Cooke,  Reg.  v.,  1  F.  &  F.,  01 59.',  593 

Coon,  People  v.,  1  Wend..  277 140 

Cooper,  State  of  Missouri  v.,  43  Mo.,  01.  3!18 

Cooper,  State  v.,  1  Green  (X.  J.),  3il . . . .  414 

Cooper.  State  v.,  8  Zab.,  ,32.  8 

Copp,  State  v.,  15  N.  II.,  21 .' <)  14 

Corkin,  Com.  v.,  ant  •,  p.  13 ]01 

CornettI,  People  v.,  92  N.  V.,  83 314 

Corning,  The  People  v  ,  2  N.  V.,  I H'i 

Cotta,  People  v.,  49  Cal.,  107 377 

Cowan  V  People,  14  III.,  3H S3  J 

Cox  V.  People,  80  N.  Y.,  5:)() 314 

Craft  V.  Com.,  81  Ky.,  230 la-j 

Cranch,  Ex  parte,  1 12  U,  S,,  V,A 883 

Cross,  United  States  v.,  1  MucArthur, 

>49 888 

Crouch,  The  Queen  v.,  1  Cox's  Cr.  Cases, 

»4 195 

Crozier,  State  v.,  13  Nov.,  3J0 370 


TABLE  OF  CASES  CITED. 


xi 


PAOB. 

..    176 
..      69 


HI., 


403 
883 
113 

400 
078 

aor. 

61 
620 
575 

87 
414 

15 
800 
843 
3«) 
415 
393 
3!M) 
897 

g:« 

42S 
!MU 
B.-)K 

3  m 

191 
3" 

17(! 

M'i 

851 

SWJ 

194 

81 3 

870 
5,< 

210 

37H 


3'18 
414 
8 
•i44 
101 
314 
33 
377 
S3  J 
314 
Via 


PAOB. 

Cniikslmnk,  United  States  v.,  02  U.  S., 

581 118,810 

Cubitt  V.  I'utin,  8  Barn.  &  Cress.,  857. .. .    573 

Cu(ldinj,'ton  v.  Wilkins,  Hobart,  81 401 

Cuniiiiiiii^s.  Com.  v.,  3  Cnsh.,  313 3 J 

CuniminKS  v.  Nichols,  13  N.  H.,  420 349 

Cunningham,  Com.  v.,  13  Mass.,  345 897 

Curioy  V.  Com.,  M  Pa.  St.,  151 545 

Curtis,  Ex  jwrte,  100  U.  S.,  371 853,  883 

Curtte,  The  State  v.,  77  Mo.,  207 444 

D, 

Dailoy,  Com.  v.,  13  Cush.,  80 578 

Dalton,  rcoplc  v.,  15  Weml.,  5S1 171,  889 

Darmer  v.  The  State,  51  Ala.,  137 848 

Daviess  V.  Fairburn,  3  Mow.  U.  8.  R.,  030  305 

Davis,  le"pIo  v.,  31  Wend., ;«» 243 

Davis,  People  v.,  W  N.  Y.,  103 14 

Davis  V.  State,  3  Humph.  (Tenn.),  439. . .  393 

Davis  V.  State,  3  Tex.  App. ,  .'>88 433 

Davis  V.  The  State,  5S  Oa.,  171 00 

Davis  v.  The  People,  1  Parker,  C.  C,  447     85 

Davis,  The  People  v.,  .JO  N.  Y.,  95 108 

Davis,  Tennessee  v.,  100  U.  o.,  357 ICO 

Davis,  Rex  v.,  0  Car.  &  P. ,  177. 543 

Davis'  Case,  18  Pa.  St.,  37 211 

Davidson  v.  New  Orleans,  Oil  U.  S.,  107. .  117 

Davidson,  The  State  v.,  30  Tex.,  335 893 

Day,  ReRina  v.,  9  C.  &  P.,  733 633 

Day  V.  The  State.  03  Ga.,  6119 18.") 

Dean,  Com.  v.,  109  Mass.,  349 413 

De  Coursey,  People  v.,  01  Cal.,  184 8 J8 

Denton,  State  v.,  0  Coldw.,  !,3^  107, 110 

Dewitt  v.  United  States,  9  Wall.,  41 83 

Dias  v.  The  State,  7  HIackf .,  80 800 

Dick  v.  State,  3  Ohio  St.,  89 5.50 

Dickson,  State  v.,  0  Kan.,  809 ...  487 

Dill  V.  State.  -,5  Ala.,  15 807 

Dlllenbnek  v.  Jerome,  3  Cow.,  293 »« 

Dingoe,  The  State  v.,  17  Iowa,  S33 29 

Di.\on,  Rex  v.,  10  Mod.,  .330 445 

Dixon  V.  Richards,  8  How.,  771 870 

Doherty,  Retina  v.,  13  Cox,  C.  C,  23  . . .  43:1 

Dotan,  People  v.,  9  Cal.,  570 370 

Dorr,  State  v.,  33  Me.,  498 S!)") 

Dorsey,  Com.  v.,  103  Moss.,  413 807 

Dowers.  State  v.,  45  N.  H.,  513 44'> 

Downer  et  al.,  State  v.,  8  Vt.,  434 5«J 

Doyle,  Com.  v.,  110  Mass.,  103 293 

Drake,  State  v..  1  Vrooni,  438 11 

Drew,  United  States  v.,  5  Mass.,  88 807 

Drum,  Com.  v.,  88  Pa.  St.,  9 893 

Dnini,  Com.  v.,  68  Pa.  St.,  0 507 

Duncan,  Reg.  v.,  14  Cox,  C.  C,  571 33 

Dupreo  V.  State,  .33  Ala.,  380 613 

Dyson  V.  State,  86  Miss.,  303 607 

E. 

Edwards,  Rex  v. ,  6  Cor.  &  P. ,  681 650 

ElUott  V.  Com.,  13  Bush,  170 8.>6 


PAGE. 

Elwe  ',  Com.  v.,  2  Met.,  100 30 

Emci-son,  State  v.,  63  N.  II.,  019 413 

Evans.  Com.  v.,  101  Mass.,  85 413 

m. 

Falrchild  v.  Bascomb,  .35  Vt.,  403 883 

Font  V.  Cathcart,  8  Ala.,  725 I5i 

Farrell  v.  The  People,  16  III.,  500 3*1 

Farrell,  Reg.  v.,  0  Cox,  C.  C,  440 873 

Feaster,  State  v.,  25  Mo.,  325  393 

Felton,  The  State  v.,  85  Iowa,  67 113 

Fennell,  Regina  v.,  14  Cox,  C.  C,  007. . .  433 

Feriter  v.  State,  83  Ind.,  883 308 

Ferrler,  Petition  of,  lOT  III.,  307 107 

Field,  State  v.,  14  Me.,  844 510 

Field,  United  States  v.,  21  Blatchford, 

3.39 288 

Filburn,  Com.  v.,  119  Mass.,  297 240 

FiUionv.  State,  5  Neb.,  354 180 

Fishback  v.  Brown,  10  III.,  74 837 

Fitzgerald,  State  v.,  75  Mo.,  671 71 

Fitzpatrick  v.  The  People,  08  Rl.,  270. .. .  60 

Flagg  V.  People,  40  Mich.,  706 4.33 

Flanigan  v.  The  People,  80  N.  Y.,  654. . .  402 

Fleetwoodv.  Com.,  p.  30 501 

Folke,  State  v.,  8  Ann.,  744 40 

Fooks,  State  v.,  81  N.  W.  R.  aowo),  501  S33 

Ford  V.  The  State,  12  Md.,  614 410 

i^nl.  State  v.,  3  Strobh.  (S.  O,  517. .. .  304 
Forsythe,  United  States  v.,  0  McLean, 

584 177 

Foster  v.  Neilson,  8  Pct.,253 807 

Fouts  V.  The  State,  8  Ohio  St.,  08 393 

Fox  v.  Ohio,5  How.,  410 285 

Fox  V.  Ohio,  5  How.,  484 18J 

Fox,  People  v.,  85  Mich.,  493 ...  400 

Francis,  Rex  v.,  12  Cox,  C.  C,  01 J  ....  83 
Franklin  County  v.  Railroad,   13  Lea 

(Tenn.),  581 115 

Ji-eeland  v.  The  People,  16  111.,  380 813 

Freeman,  Rex  v.,  5  Car.  &  P.,  531 175 

Frost,  Reg.  v.,  0  C.  &  P.,  147 803 

Fulwood's  Case,  Cro.  Car.,  4^3 4 

G. 

Qaige,  People  v.,  20  Mich.,  30 460 

Gallagher,  Com.  v.,  126  Mass.,  54 80 

Galliard  v.  Laxton,  8  B.  &  S.,  303 37 

Oallhnore,  State  v.,  8  Ired.,  375 40* 

Garcia,  People  v.,  (a  Cal.,  19 156 

Gardenshlre  v.  Parks,  3  Yorg.  ,23 133 

Ganlner  v.  People,  8  Scam.,  83 645 

Garland,  Ex  parte,  4  Wall.,  3;M 463 

C:  .1,  ner,  Iv.  v.,  1  Den.  C.  C,  339 438 

Garner,  Reg.  v.,  4  Fost.  &  F.,  316 88 

Gnrnctt,  People  v.,  SO  Cal.,  630 648 

Gorrity  v.  The  People,  107  111.,  102 85 

Garvey  (the  petitioner)  v.  The  People ...  860 

Genet,  The  People  v. ,  69  N.  Y 478 

Gibbons,  Reg.  v.,  0  Cox,  C.  C,  105 475 


3di 


AMERICAN  CRimNAL  REPORTS. 


PAGE. 

GibbB£StantonT.  State,45N.  J.,879...  891 

Gilbert,  People  v.,  GO  Cal.,  108 658 

Gfllbert,  State  v.,  87  N.  C,  827 103 

Gilbert  v.  The  State,  05  Ga.,  449 658 

Gilbert  /Armstrong,  Town  of  Madison  t.  471 

Gile  V.  People,  1  Col.,  80 8G8 

Gill,  Rex  v.,  Russ.  &  R.,  431 445 

Glllon,  Com.  v.,  8  Allen,  503 108 

Gilooley  v.  State,  58  Ind.,  188 811 

Glass  V.  The  State,  30  Ala.,  539 850 

Ooerson  v.  Com.,  3  Ont.,  388  .  189 

Golden  v.  Prince,  8  Wash.  C.  C,  813 113 

Goldsmith,  In  re,  84  Kan.,  757 447 

Goodenow,  State  v. ,  05  Me. ,  30 39 

Goodhue  v.  People,  M  111.,  87.  .176, 826,  330, 5.55 

Goodrich,  State  v.,  40  N.  H.,  186 819 

Grady  v.  State,  11  Ga.,  253 507 

Graham,  State  v.,  17  N.  W.  Rep.,  192.  .580, 6:« 

Granberry  v.  State,  61  Miss.,  410 29 

Grant,  The  State  v.,  76  Mo.,  230. .  37 

Gray  V.  Com.,  101  Pa.  St.,  £30 433 

Gray  V.  State,  63  Ala.,  06 250 

Green,  Com.  v.,  1  Ashmoad  (Pa.>,  889. .. .  3^2 

Green  v.  Cornwell,  1  City  Hall  R ,  14 . . . .  201 

Griffith  V.  The  State,  37  Ark.,  334 13:1 

Groomo,  The  State  v ,  10  Iowa,  898 113 

Gross,  State  v.,  N.  W.  R.  (Wis.),  802 HXi 

Guild,  State  v,  10  N.  J.,  103 433 

Gunnarssohn  v.  City  of  Sterling,  98  111., 

509 303 

Gustafson,  State  v.,  60  Iowa,  IM 27 

H. 

Hadley,  Ex  parte,  31  Cal.,  108 174 

Hagan,  State  v.,  M  Mo.,  193 43;! 

Ilagan  v.  The  State,  10  Ohio  St.,  459 393 

Haile  v.  State,  11  Humph.  (Tenii.),  151. .  307 

Hall,  People  v.,  48  Mich.,  491 106,  477 

Hall  V.  State,  a5  Ga.,  3b 433 

Hamilton,  State  v.,  57  Iowa,  698 83 

Hammond,  Town  of  Washington  v.,  76 

N.  C,  83 459 

Ilandly,  State  v.,  4  Harr.,  506 895 

Hannah,  Reg.  v.,  18  Cox,  C.  C,  648 9 

Hannan  v.  Edis, )    Mass.,  347 53 

Hardy  v.  Merrill,    j  N.  H.,  8s7 400 

Harmon  v.  Com.,  12  S.  &  R.,  09 830,  5,'i3 

Harney,  Com.  v.,  10  Met.,  483 237 

Harper,  State  v. ,  83  Ohio  St.,  78 14 

Harriden,  People  v.,  1  Parker,  314 55fl 

Harris,  The  People  v.,  45  Barb.,  494. .. .  108 

Harris,  State  v.,  4  Jones,  luo 507 

Harris,  The  King  v.,  8  Barn.  &  Alderson, 

<B8 473 

Hartung  v. The  People,  88  N.  Y.,  95. .  113,  202 

Harvey  v.  The  State,  40  Ind.,  516 108 

Ilassall,  Reg.  v.,  L.  &  C,  68 604 

Hatch  V.  State,  8  Tex.  Ct.  App.,  410 ... .  530 

Haughton,  Queen  v.,  1  El.  &  Bl.,  601 .. .  413 

Hawei,  Com.  v.,  13  Bush,  700. 807,  j») 


PAQB. 

Hawkins,  Com.  v.,  3  Gray  (Mass.),  463. . .  367 

Hayden,  State  v.,  45  Iowa,  11 84,  388 

Hayes,  The  State  v.,  78  Mo.,  307 42 

Hector  V.  State,  8  Mo ,  160 4.33 

Hemrick,  State  v.,  62  Iowa,  414 85 

Hendmarsh,  Rox  v.,  8  Leach's  C.  C,  560  149 

Henke,  State  v.,  58  Iowa,  457 28 

Hennessey,  The  People  v.,  15  Wend.,  147  842 

Henry,  State  v.,  59  Iowa,  390 ...  KO 

Heskew  v.  The  State,  14  Tex.  App.,  OOO  444 

Hester  v.  Com.,  4  Norris,  139 187 

Hlcklin,  Regina  v.,  L.  R.,  3  Q.  B.,  809. . .  455 

Hicks,  State  v.,  87  Mo.,  588 398 

Highland  v.  People,  1  Scam.',  393 558 

Hildebrand  v.  People,  50  N.  Y.,  394 335 

Hill,  Com.  v.,  11  Cush.,  137 80 

Hill  V.  People,  10  Mich.,  351 118,  588,  577 

Ilillv.  State,  43  Ala.,  833 251 

Hill,  United  States  v.,  1  Brock.,  150 237 

Hilliard,  Com.  v.,  8  Gray,  294... 511 

HiU'sCase,  2Gratt.,593 371 

Hind,  Reg.  v.,  8  Cox,  O.  C,  .390 14 

Hincr  V.  People,  34  111,  897 5.30 

Hinson  v.  Lott,  8  Wall.,  148 21 

Hinson,  Statev.,83N.C.,510 138 

Kite  V.  State,  9  Yerger,  a37 207 

Hodgfc.-  Rex  v.,  1  Moo.  &  M.,  311 43 

Hogg  V.  The  State,  3  Blackf .  (Ind.),  380 . .  175 

Hogg  V.  Ward,  3  H.  &  N.,  417 87 

Holler  V.  State,  37  Ind.,  57 490 

Holliday  v.  The  People,  4  Oilm.,  113. .. .  330 

Hollis,  Reg.  V. ,  13  Cox,  C.  C. ,  4ft3 10 

Holmes  v.  State,  83  Ala.,  24 607 

Holmes,  Reg.  v.,  0  Cox,  C.  C,  216 273 

Hopps  V.  The  People,  31  111.,  .385 57 

Horning,  State  v. ,  49  Iowa,  158 87 

Ilonisby,  State  v.,  8  R.,  651 47 

Hough,  Rex  v.,  Russ.  &  R.  C.  C,  120 83 

Howell,  The  United  States  v.,  11  Wall., 

4')2 s;47 

Howell's  Case,  26  Gratt.,  995 371 

Hoyt,  State  v.,  40  Conn.,  .339 ,394 

Hughes,  People  v.,  41  Cal.,  230 3;18 

Hughes,  The  State  v.,  4  Iowa,  554 113 

Hughes,  The  State  v.,  58  Iowa,  1(13 71 

Hughes,  The  State  v.,  71  Mo.,  0;W 578 

Hughes,  Regina  v.,  1  Ci  r.  &  Kir., 619. .. .  473 

Hughes,  Reg.  v.,  9  C.  &  P.,  758 533 

Hughes,  Rex  v..  1  Moody,  370 171 

Huguefs  Case,  29  L.  T.  (N.  S.),  41  . . .  .589,  590 

Humphrey  v.  Whittcn,  17  Ala.,  .30 409 

Hunter  v.  State,  40  N.  J.,  .ViS   lac 

Hurd,  Com.  v.,  133  Mass.,  433 825 

Ilurtado  v.  California,  110  U.  S.,  510.  .118, 184, 

801 

Ingall  V.  state,  48  Wis. ,  047 8S 

Ingalls,  State  v.,  59  N.  H.,  88 808 

Isaacs,  Reg.  v.,  9  Cox,  C.  C,  238 0 

iBham,  United  States  v.,  17  WoU,,  400. . .  28T 


^ 


TABLE  OF  CASES  CITED. 


Xlll 


PAQB. 

367 

84 

338 

,. 

42 

433 

35 

CO 

143 

88 

47 

543 

330 

m 

441 

187 

455 

. . . 

393 

558 

. .  • 

335 

•  •  • 

80 

588 

,577 

251 

387 

511 

•  •  • 

871 

•  ■  • 

14 

•  .  • 

550 

31 

138 

207 

43 

0.. 

175 

37 

498 

3M 

10 

507 

>  •  • 

373 

67 

,  , 

37 

47 

83 

xll., 

S47 

an 

394 

•  •  •  • 

3:)a 

.  .  .  . 

113 

71 

578 

.  .  .. 

473 

•  •  •  • 

633 

171 

.580 

,500 

409 

.  .  . 

156 

•  •  •  • 

333 

.U8 

184, 

«M 

85 

.  ..  . 

SOS 

•  •  •  • 

0 

8... 

28T 

3. 

?AOE. 

Jackson,  Com.  v.,  133  Mass.,  16 15 

Jackson  v.  State 570,  578 

Jacobs,  State  v.,  5  N.  C.  Bep.,  a>9.. ......  la") 

Jacobs  and  others  v.  Com.,  8  Leigh,  709.  146 

Jamison,  The  State  v.,  37  Ark.,  445 S3a 

J'Anson  v.  Stuart,  1  T.  R.,  748 445 

Jarvis,  The  Quec.   v.,  L.  R.,  1  C.  C,  90. .  433 

J.  B.,  State  v.,  Tyler  (Vt.),  309 478 

Jennings,  Com.  v.,  131  Mass.,  47 69 

Jensen  v.  The  State,  60  Wis.,  577 109 

Joe  Allen,  The  Town  of  Madison  v 471 

Joel  V.  State,  2S  Tex.,  013 392 

Johnson  v.  State,  47  Ala.,  9 l.M 

Johnson  v.  State,  38  Ark.,  343 336 

Johnson,  State  v.,  3  Harrington  (Del.), 

601 ;«0,  555 

Johnson,  State  v.,  40  Conn.,  138,  and  41 

id.,!>»l 367 

■Johnson,  State  v.,  67  N.  C,  59 568 

Johnson,  State  v.,  13  Nev.,  131 131 

Johnson,  State  v. ,  7  Blackf.,  49  .   407 

Johnson,  The  State  v. ,  49  Iowa,  139 175 

Johnson  v.  State,  1  Tex.  App.,  3.33 131 

Johnson  v.  The  State,  08  Ga.,  399 580 

Johnson,  State  v.,  U  Ohio  St.,  334 178 

Johnson's  Case,  ante,  p.  131  391 

Johnston,  State  v.,  30  Ann.,  901 40 

Jones'  Case,  1  Leigh,  598,  611 371,  373 

Jones,  Com.  v.,  1  Leigh,  010 393 

Jones  V.  Com.,  75  Pa.  St.,  403 3(17 

Jonc-8,  People  v.,  31  Mich.,  815 300 

Jones  V.  Bobbins,  8  Gray.  389 301 

Jones,  State  v.,  30  Mo.,  53 398 

Jones  V.  State,  0  Parker,  1 85 . . .   »> 

Jones  V.  The  State,  15  Ark..  881 31 

Jordan  v.  Osgood,  109  Mass.,  457 191 

Jordan  v.  Overseers  of  Dayton,  4  Ohio, 

'-9.-1 30 

Jordan  v.  State,  31  Miss.,  3S3 43:j 

Jukes,  Rex  v.,  8  T.  R.,  538 178 

K. 

Kalnv.  The  State,  8  Ohio  St.,  330 393 

Kano,  State  v.,  33  Ann.,  999 44 

Karstendick,  Ex  parte,  93  U.  S.,  3:M5  . . . .  381 

Kate  Marsh,  State  v.,  ante 3ri0 

Kaufntan,  Slate  v.,  51  Iowa,  578 118,  57'H 

Kearley,  State  v.,  80  Kan.,  87 531 

Keeler,  State  v.,  38  Iowa,  551 141 

Kelly  V.  Com..  1  Grant,  484 387,  393 

Keenan  v.  Com.,  44  Pa.  St.,  55 .387 

Keener  v.  SUite,  18  Ga.,  191 394,  4».'> 

Knanedy  v.  People,  39  N.  Y.,  315 550 

Kenney  et  al.,  The  People  ex  rol.  v.,  00 

N.  Y.,'394 115 

Kent,  State  v.,  33  Minn.,  41 178 

Kibs  V.  The  People,  HI  HI.,  ,599 177,  3J7 

Kimball,  Com.  v.,  31  Pick.,  S.'iO 114 

King,  Com.  v.,  3  Va.  Cas.,  78 303 


PAGE. 

King  V.  People,  83  N.  Y.,  587. 445 

King  V.  Ford,  Yelv.,  99 280 

Kingen  V.  State,  4(i  Ind.,  i3i 311 

King's  Case  and  note,  3  Va.  Cas.,  84..  371 

Kirby  v.  Com.,  77Va.,  081 150 

Kirk  V.  State,  1  Cold w.,  31.5 107 

Kirkham,  State  v.,  1  Ired.,  384 483 

Kite  V.  Com.,  11  Mete,  685 509 

Klinck  V.  Colby,  40  N.  Y.,  437 523 

Knight  V.  Morse,  51  Vt.,  43i OH 

Kramer  v.  Com.,  87  Pa.  St.,  899 83 

Kramer  v.  State,  01  Miss.,  158 we,  433 

Kribs  V.  People,  83  III.,  435 838 

Kring  V.  Missouri,  107  U.  S.,  321 439 

L. 

Ladd,  State  v.,  32  N.  H.,  110. 319 

Lamb,  People  v.,  3  Keyes,  480 513 

Landis  v.  The  State,  70  Ga.,  051 35 

Lane,  State  v.,  78  N.  C,  517 33,  138 

Lang,  State  v.,  C3  Me.,  315 413 

Lange,  Ex  parte,  18  Wall.,  103 353,383 

Langston,  State  v.,  88  N.  C,  093 450 

Larkin,  State  v.,  11  Nev.,  314 378 

Larned  v.  Com.,  18  Mete.,  240 It 

Lrfiwrence,  United  States  v.,  13  Blatchf., 

335 205,  210 

Lavey,  Reg.  v.,  3  Car.  &  K.,  20 475 

Lawrence  v.  The  State,  2  Tex.  Ct.  App., 

479 »   474 

Leach,  Rex  v.,  3  Stark.,  70. , 175 

League  v.  State,  38  Md.,  3)7 113 

Leoth,  Com.  v.,  1  Va.  Cases,  1.>1 509 

Leavitt,  State  v.,  33  Me.,  183 413 

Lederer  v.  Wagner 295 

Leftwich  V.  Com.,  20  Grattan,  710 479 

Legg  V.  Drake,  1  Ohio  St.,  380 199 

Levy  V.  People,  80  N.  Y.,  3J7 5:31 

Lewis  V.  Chapman,  10  N.  Y.,  309 52:1 

Likes  V.  Dike,  17  Ohio,  ^Vl 53 

Lincoln,  Com.  v.,  11  Allen,  233 2:» 

Lines,  Reglna  v. ,  1  C.  &  K. ,  393 .53  J 

Little,  State  v.,  1  N.  H.,  '357 333 

Locke  V.  State,  33  X.  H.,  100 349 

Logg  V.  The  People,  93  III.,  598 403 

Logue  V.  Com.,  3S  Penn.  St.,  205 5«) 

Long  V.  State,  15  Ind.,  183 531 

Long  V.  State,  50  Ind.,  183 .530 

Lord  Gortlon,  Rex  v„  3  Doug.,  591 3U8 

Losee  v.  Losee,  3  Hill  (N.  Y.),  009 133 

Love,  State  v.,  21  W.  Va.,  783 110 

Lovell,  The  State  v.,  23  Iowa.  301 37 

Low's  Case,  4  Me.,  439 524 

Lowenthal  v.  The  People,  33  Ala.,  5-(9. . .  389 

Lowry  v.  McMillan,  8  Pa.  St.,  184 'JO 

Lowry  v.  Polk  Co..  51  Iowa,  50 185 

Lowry  v.  State,  18  I.*a  (Tenn.),  113 l.W 

Luning  V.  State  of  Wis.,  1  Chand.,  187. .  201 

Lyon  v.  The  People,  08  III.,  271 318 

Lyons  et  al.  v.  The  People,  03  III.,  271, 

875 826,6.18 


II  i 


XIV 


AMERICAN  CRIMINAL  REPORTS. 


M. 

PAGE. 

Macino  v.  People,  19  N.  Y.,  137. 335 

Maden  v.  Emmons,  83  Ind.,  asi 811 

Mahler  v.  Transportation  Co.,  35  N.  Y., 

353 853 

Maine,  State  v.,  37  Conn.,  881 1 18 

Mann,  United  States  v.,  1  Gallison,  3, 177.  8S7 

Mansfreed,  State  v.,  41  Mo.,  470 670 

Marigold,  United  States  v.,  0  How.,  500.  851 

Marion  v.  State,  ante,  p.  319 188 

Marshall  v.  The  State,  19  Ohio  St.,  303. .  3>^> 

Martin,  State  v.,  onte,  781 £31 

Mash,  Cora,  v.,  7  Met.,  478 3) 

Mason,  Rex  v.,  1  Leach  (4th  ed.),  487. . .  415 

Matt«r  of  Common,  47  Mich.,  481 309 

Maxwell,  United  States  v.,  3  Dillon,  875.  88r( 

May,  Rex  v.,  1  Doug.,  193 414 

May  V.  The  People,  00  III.,  119 58 

Mayer,  U.  S.  v.,  Deady,  13" 473 

Mazou,  State  v.,  90  N.  C,  C70 35 

McCaller,  Peoplo  v.,  8  Cal.,  .3ft} 517 

McCarthy,  Com.  v.,  119  Mass.,  .r<l 15,  i:;o 

McClear,  State  v.,  11  Nev.,  39 57H 

McCoal  V.  Smith,  1  Black,  U.  S.  R., 4.59. .  3 ):, 

McCormick,  The  State  v.,  50  Iowa,  rm..  3.'9 

Mccormick,  The  State  v.,  87  Iowa,  403. .  UK 

McCoy,  State  v.,  14  N.  II.,  Ul 175, 414 

McCue  V.  Com.,  78  Pa.,  191 5(;8 

Mcculloch  V.  The  State,  48  Ind.,  109 1  IS 

McDonald,  Peoplo  v.,  43  N.  Y.,  01 3.5 

McDonald,  State  v.,  35  Mo,  170 «9 

McFarland,  The  State  v.,  49  Iowa,  99. . . .  3.9 

McGhce,  United  States  v.,  1  Curtis,  1  . . .  40> 

McGiue,  United  States  v.,  1  Curt.,  1 307 

Mclntyre  v.  The  People,  33  III.,  514 408 

McKflte,  Reg  v.,  Law  Rep.,  1  C.  C.  R., 

185 CIO 

McLeod,  People  v.,  1  Hill,  430 507 

McMath  V.  The  State,  55  Ga.,  303  303 

McPherson  v.  State,  9  Yerg.,  379 55ii 

McPherson  v.  The  State,  39  Ark.,  835. ...  300 

McPike,  Com.  v.,  3  Cush.,  181 201,413 

Mead,  Com.  v.,  18  Gray,  109 510 

Mead,  Rex  v.,  4  C.  &  P.,  535 319 

Medlicott,  State  v.,  9  Kan.,  257 487 

Merkle  v.  The  Stote,  87  Ala.,  139 301 

Merrill  v.  Nary,  10  Allen  (Mass.),  410. . .  809 
Merwin  v.  The  People,  30  Mich.,  298.  .170,  403 

Meyers,  Ex  parte,  44  Mo.,  379 570 

Middleton,  Reg  v.,  Law  Rep.,  3  C.  C.  R., 

38 010 

Miles  V.  United  States,  108  U.  S.,  801 70 

Miller  V.  Allen,  11  Ind.,  3^9 570 

Miller,  In  re,  S3  Fed.  Rep.,  33 310 

Miller  V.  People,  89  111.,  457 58,  433 

Miller  V.  State,  40  Ala.,  M 4ia 

Miller,  United  States  v.,  8  Hughes,  568. . .  888 

Mills  V.  The  State,  30  Ala.,  80 851 

Mills,  The  State  v.,  17  Mo.,  811 gai 

Milton  V.  State,  46  Ala.,  50 889 


PAOB. 

MinaQueenv.  Hepburn,  7  Cranch,  390..  483 

Mitchell  V.  Milholland,  100  III.,  17.5 403 

Mitvhell  V.  State,  5  Yerger  (Tcnn.),  310. .  393 

Mockabee  v.  Com.,  78  Kentucky 87 

Moore  v.  Fowler,  1  Hemp.,  .53) 113 

Moore,  The  Peoplo  v.,  16  Wend.,  419. .. .  183 

Morey,  State  v.,  3  Wis.,  494 177 

Morgan  v.  Burr,  58  N.  H.,  470 414 

Morris,  Regina  v.,  9  C.  &  P.,  317 849 

Morrison  v.  State,  40  Ark.  ,448 115 

Moses  V.  State,  33  Ala.,  431 1.50 

Moss,  State  v.,  8  Jones,  00 Ill 

Moye  V.  The  State,  05  Oa.,  754 *'5 

Mulholland.  Stote  v.,  10  Ann.,  377 808 

Mullany,  Reg.  v.,  Leigh  &  C,  593 470 

Mullen,  The  State  v.,  35  Iowa,  109 251 

Munn  V.  Illinois,  04  U.  8.,  115 118 

Munster  v.  Lamb,  83  Am.  Law  Reg.  (N. 

S.),88 583 

Murphy,  The  Com.  v.,  1  Mete.  (Ky.),  305.  578 

iHurpliy,  State  v.,  3  Dutcher,  113 8 

Murphy.  Peoplo  v.,  45  Cal.,  137,  143  . .  .131,  377 

Murphy  v.  The  People,  37  III.,  447 1,50 

Murphy's  Case,  S3  Oratt.,  973 374 

Murray,  People  v.,  10  Cal.,  .303 370 

Murry,  Com.  v.,  8  Ashmead  (Pa.),  41 ... .  393 
Murray's  Lessee  v.  Iloboken  Land  Co., 

18  How.,  373 117 

Mycock,  Regina  v.,  IS  Cox,  C.  C,  88 5 

N. 

Neale.  Reg.  v.,  1  C.  &  K.,  591 414 

Neitzel  v.  Concordia,  1 1  Kan.,  400 4 18 

Nelson  v.  State,  1  Tex.  Ct.  App.,  551)  . . .  3!t3 

Nettleton,  Rex  v.,  1  Moody,  S59 175 

Nevens,  Peopla  v.,  1  Hill  (N.  Y.),  151. . . .  S^4 

Newcomb  v.  State,  37  Miss.,  400 513 

Nol)le  V.  The  State,  Hi  Ohio  St.,  5 11 873 

Northrup,  State  v.,  4<  Iowa,  5!-3 87 

Nott,  Com.  v.,  1.35  Mass.,  378 43) 

Nye,  Ex  parte,  8  Can  ,  lOl) 447 

o. 

O'Brien,  State  v.,  7  R.  I.,  a38 190 

O'Connell  v.  The  Queen,  11  CI.  &  F.,  1.16, 

?•  838 6.>-3,  685 

O'Connor  v.  The  Stote,  01  Go.,  185 .37 

Oddy,  Reg.  v.,  6  Cox's  C.  C,  810 lui 

Okely,  Bank  of  Columbia  v.,  4  Wheat., 

»« 118 

Olllier,  Regina  v.,  10  Cox,  C.  C,  403 6 

ONcll,  Peoplo  v.,  4S  Cal.,  8,58  .. .  678 

Ortwein  v.  Com.,  70  Pa.  St.,  414 515 

Osborn  v.  State,  84  Ark.,  089 100 

Osljorn  V.  United  States,  91  U.  S,,  474. . . .  401 

Ostraiider,  The  Stole  v.,  18  lowo,  435  .. .  119 

Owens,  State  v.,  10  Rich.  (S.  C),  100 175 

P. 

Palmer  v.  People,  10  Wend.,  106 883 

Palmer  v.  The  State,  39  Ohio  St.,  830 ... .  85 


A 


TABLE  OF  CASES  CITED. 


XV 


PAOK. 

I..  423 

..  409 

..  303 

..  87 

..  113 

..  133 

..  177 

..  414 

..  310 

..  115 

..  ISO 

..  Ill 

..  4H5 

..   aw 

..  470 
..  8M 
...     118 

;n. 
. . .   r,83 

85.  678 
8 
,131,377 
. . .  iriO 
. . .  374 
...  370 
. . .    39i 

;o., 

...    117 
5 


414 

448 
31hi 
175 
S+J 
513 
S?J 
27 
4:)J 
447 


lUl 

118 
S 
678 
515 
100 
401 
llii 
175 

833 
SB 


4 


PAOE. 

Parks,  Ex  parte,  03  U.S.,  18 883 

rarineleo,  State  v.,  9  Conn.,  858 413 

Pattoi-son  V.  Kentucky,  07  U.  S.,  GDI 20 

Pattci-son  V.  People,  40  Barb. ,  035 507 

Pattfrson  v.  State,  70  Intl. ,  341 311 

Patza,  State  v.,  3  Ann.,  512 208 

Paul  V.  Detroit,  32  Mich. ,  108 107 

Payne  v.  The  People,  0  Johns.  ,103 310 

PcaboJy,  People  v.,  85  Wend.,  478 818 

Peats  cose,  1  Kast,  P.  C. ,  389 103 

Peirce,  State  v.,  43  N.  II.,  270 415 

Pendock  v.  McKinder,  Willes,  005 2S) 

Pennoyer  v.  Neff,  05  U.  S.,  714 184 

People  V.  City  of  Rochester,  50  N.  Y., 

585 113 

I'erry  et  al.  v.  The  People,  14  111.,  40G  . . .  03 

Petit,  United  States  v.,  11  Fed.  Rep.,  58.  288 

Petty,  In  re,  28  Kan.,  477 447 

Petty  V.  County  Court,  45  Cal.,  840 838 

I'cvcn'lly  V.  People.  3  Park.,  50 43 

Pfifer,  StJite  v..  <m  N.  C,  3.'1 835 

Phelps,  i-'tate  v.,  11  Vt.,  110 105,433 

Phillips.  E.\  parte,  7  Kan.,  18 447 

Phipoe's  Case,  8  Leach,  7i3 5.")0 

Pif^inan  v.  State  of  Ohio,  14  Ohio,  555..  3(i7 

Pike,  State  v.,  40  N.  H.,  408 400 

Pippi'tt,  Rex  v.,  1  T.  R.,  235 414 

Pirtlc  V.  State,  9  Humph.  (1  Tenn.),  00:3..  3117 

Pitman  v.  State,  28  Ark.,  iW 513 

Pollard,  State  v.,  83  N.  C,  507 ,  138 

Poison,  The  State  v.,  89  Iowa,  133 118 

Porter  v.  State,  .'i5  Ala.,  95 433 

Poteet,  suite  v.,  80  N.  C,  018 488 

Potter,  People  v.,  5  Mich.,  1 3!>8 

Potter,  State  v. ,  15  Kan . .  3.)2 3(iS 

Pow  V.  Bcckner  et  al.,  3  Ind.,  475 37 

I'owell  V.  Stati>,  10  Ala.,  577 518 

Powell ,  State  v. ,  80  N.  C. ,  (ilO 13^ 

Pratt  V.  Price,  1 1  Wend.,  187 407 

Price,  Com.  v.,  10  (iray,  478 88 

Price,  Reg.  v.,  13  Q.  U.'  D.,  317 605,  .590 

Prichett  V.  State,  88  Ala..  39 511 

Priddle,  The  King  v.,  1  Leach  (4th  ed.), 

448    285 

Prince  v.  Same,  7  A.  &  E.,  027 13 

Piitchard,  State  v.,  15  Nev.,  79 370 

Pryor's  Cas»',  87  Oratt.,  1010 370 

Q. 

Queen's  Case,  3  B.  &  B.,  397 13 

Quinn  V.  Ilalbert,  52  Vt.,  305 528 

R. 

Rafferty  v.  The  People,  00  111.,  134 408 

Railroad  v.  The  State,  3.'  N.  H.,  815 13:) 

Redlnger,  The  People  v.,  55  Cal.,  290. .. .  470 

Reed  v.  The  State,  8  Ind.,  201) 200 

Reed.  State  v..  47  N.  II.,  400 510 

Ri'ed,  State  v.,  08  Iowa,  40 3  > 

Reeve,  The  Queen  v.,  L.  R,  1  C.  C,  308 .  4!J3 


PAOE. 

Reeve,  Reg.  v.,  Lond.  Leg.  Obs.  (Feb. 

li>,  1845),  p.  312     300 

Reid,  The  State  v.,  80  Iowa,  413 118 

Reley  v.  Stote,  9  Humph.  (Tenn.),  040. . .  SJ8 
Rex  V.  Justices  of  Kent,  11  East,  889.  .500, 59V 

Reynolds,  People  v.,  10  Cal.,  138 545 

Richmond  v.  Stat»,  ante,  388 S3 

Richmond  v.  State  (S.  C,  80  N.  W.  Rep., 

888) 93 

Ridley  and  Johnson,  The  State  v.,  48 

Iowa,  370 33  > 

Ridley,  State  v.,  48  Iowa,  370 »4 

Rivers,  The  State  v.,  58  Iowa,  108 4J8 

Robinson  v.  Robinson  &  Lane,  1  Sw.  & 

Tr.,  308 58;),  684 

Robinson,  State  v.,  14  Minn.,  447 108 

Robinson,  State  v. ,  40  Me. ,  285 113 

Roby,  Com.  v.,  12  Pick.,  490 344 

Rockwood's  Case,  13  How.  St.  Tr.,  139..  381 

Roe  V.  Taylor,  45  III,  4*5 400 

RoRcrs,  People  v.,  18  N.  Y.,  9.     307,  408 

Rogier,  Rex  v.,  1  B  &  C,  aW 445 

Rohtrischt,  State  v.,  12  Ann.,  383 398 

Rosenburgh,  U.  S.  v.,  7  Wall.,  580 477 

Ross'  Case,  2  Pick.,  105,  178 113 

Ross  V.  Irving,  14111.,  171 107 

ROS.S,  State  v.,  81  Iowa,  4(i7 817 

Ross,  The  SUUe  v.,  8  Dutchor  (N.  J.I,  22.4  52 

Koth,  The  State  v.,  17  Iowa,  SUn 30 

Rouch  V.  Zehring,  0  P.  F.  Smith,  74 388 

Rowe,  The  People  v.,  4  Parker's  Cr.  Rep., 

853 217 

Rowland,  Ex  parte,  104  U.  S.,  004 853 

Ruby,  Com.  v.,  12  Pick.,  400 88 

Runyan  v.  Price  et  al.,  15  Ohio  St.,  1  ...  133 

Rutherford  v.  Morris,  77  III.,  307 400 

Rj-au  &  Jones,  The  State  v.,  4  McCord 

(P.C),  10 175 

s. 

Sanabrla  v.  People,  24  Hun,  270 343 

Sanders,  State  v..  »)  Iowa,  m^i 2« 

Sanford,  People  v.,  13  Cal.,  80 388 

Sartor,  The  State  v.,  8  Strobh.,  (10 201 

Sawyer  v.  People,  3  Gilni.,  SVi 558 

Sawyer,  State  v.,  50  N.  II.,  175 ICO 

Seaife,  Reg.  v..  17  Q,  B.  Div.,  888 38 

Schuler,  People  v.,  88  Cal.,  400 515 

6ch»i-eiter,  State  v.,  87  Kan.,  409 490 

Schwuchow  V.  Chicago,  08  HI.,  444 808 

Scott,  Com.  v.,  183  Mass.,  833 620,  531 

Scott,  Ex  parte,  9  Bam.  &  Cress.,  440. . .  218 

Scott,  The  Territory  v.,  2  Dak.,  218 278 

Scott,  State  v.,  4  Ired.,  400 507 

Serafford,  In  re,  81  Kan.,  735 447 

Scribes  v.  Beach.  4  Denio,  448 58 

Scroggins.  People  v.,  37  Cal.,  083 513 

Scroggins,  Peupl'  v.,  37  Cal.,  070 400 

Seeley  v.  Engell,  13  N.  Y.,  543 4 

Shadd,  State  v.,  80  Mo.,  338 178 


XVI 


AHIERICAN  CRIMINAL  REPORTS. 


FAOE. 

Sheldon  v.  Newton, 3  Ohio  St.,  480 3J-' 

Shepaid,  State  v.,  7  Conn.,  54 413 

Shopard  v.  The  People,  2.>  N.  Y.,  400 . . . .  2C3 
Shepard,  United  States  v.,  1  Abbott  (U. 

S.),  Wl 2S« 

Sherman  v.  Com.,  14  Grattan,  «r7 47!) 

Sherman,  People  v.,  10  Wend.,  S99 38!) 

Shines  v.  State,  43  Miss.,  &3t 55li 

Sholler  v.  State,  37  Ind.,  01 513 

ihorter  v.  People,  3  Conist.,  197 507 

ihortpr  V.  State.  (13  Ala.,  13!) 151 

iiebold.  Ex  parte,  1()0  U.  S.,  371 SWJ 

liimmerman  v.  State,  14  Neb.,  508 fti 

Himmons  v.  State,  01  Miss.,  3-13 43J 

Simmons,  United  States  v.,  00  U.  S.,300  SKI 

Simms,  State  v.,  71  Mo.,  .WS 1)0 

Bloan,  State  v.,  47  Mo.,  013 507 

Smart,  Com.  v.,  0  Gray,  15 177 

Smith  V.  Biinis,  0  Johns.,  198 :«.' 

Smith,  City  of  St.  Louis  v.,  3  Mo.,  113.  3)3 

Smith,  Regina  v.,  33  Eng.  L.  &  £<!.,  507.  03 

Smith,  Rex  v.,  3  Douff.,  441 .597 

Smith,  Rex  v.,  1  Moody,  C.  C,  2S9 <m 

Smitli,  Rex  v..  Russ.  f:  R.,  307,  510. . .  .171,  177 

Smith,  People  v.,  0  Mich.,  1!)3 113 

Smith,  People  v.,  57  Barb.,  40 414 

Smith  V.  State,  10  Ind..  100 433 

Smith.  State  v..  Bailey's  iS.  C.i  I..a\v 

Rep..  3HI.  and  note 319 

Smith,  State  v.,  43  Vt.,  3'4 4l:i 

Smith.  State  v..  49  Conn..  370 l.V) 

Smitli  V.  The  State,  »)  Ind..  l.")9 170 

Smith  V.  The  State.  01  (ia.,  Ui.) 100 

Smith  V.   Tlie  State   ot   Maryland,   18 

How..  70 I'M 

Smith  V.  United  States,  94  U.  S.,  97. . . .  47!) 

Snow.  State  v..  3  R.  I.,  04 n  ( 

Snj-der.  State  v..  .50  X.  H.,  1.50 .n;) 

Snyd  r.  United  States  v..  113  U.  S.,  310. .  SHI 

Solgard.  Rex  v..  3  Str.,  1097 ,59T 

Spears  v.  State.  3  Ohio  St.,  .5*3 .m 

Spencer.  Rex  v..  Rush.  &  R.,  510  in 

Spencer's  Case 3:)  i 

Squire,  Com.  v.,  1  Met.,  SW 41:) 

Stacy  V.  Graham,  1 1  N.  Y.,  493 131) 

Standeld  v.  The  State,  43  Tex.,  107 51 

Staidey,  State  v..  04  Jte..  157 •,';!,-) 

Starr.  State  v.,  3H  Mo.,  370 ;;,)  > 

Stanp  V.  Com.,74  Pa.  St.,  1.5H ,'•,4.-, 

SterllUK  V.  Sterling.  41  Vt..  HO «; 

Stewart.  People  v.,  7  Cal.,  140 37; 

Stewart  v.  People.  Sup.  Ct.  .Allch.,  3  \. 

W.  Rep.,  mm (,. 

Stinson  V.  The  People,  43  111..  397 .30,-, 

St.  Jliohnels,  Rex  v.,  3  BlaeU.,  719 ,570 

Stocking  V.  State,  7  Indiana,  3;1) 141 

Stokes  V.  State,  8J  Amer.  Rep.,  73 ir-, 

Stokes  V.  People  of  New  York,  .53  N.  Y., 

''■'* 405,.513 

StoUer,  State  v.,  38  Iowa,  331 177 


PAOE. 

Stone  V.  Segtir,  11  Allen,  508 ,540 

Stone  V.  State,  30  Ind.,  115 HO 

Stone  V.  Stone  and  Appleton,  3  Sw.  & 

Tr..  flOS 584 

Stone,  The  TeiTitory  v.,  3  Dak.,  1.55 445 

Stoudenmeier  v.   Williamson,  39  Ma., 

.5,58 19.3,301 

Straw,  State  v.,  .3.')  Me.,  5,54 5H 

Strong,  People  v.,  3) Cal.,  151 515 

Sturdivant,  Com.  v.,  117  Mns.H.,  1.39 197 

Sturge  V.  Buchanan,  10  A.  &  E.,  .5!)S-Ca5.  13 

Sullivan,  People  v.,  3  Seld.,  400 .507 

Sullivan,  South  &  North  Ala.  R.  R.  v., 

.5!)  Ala.,  373 230 

Sullivan  v.  The  State,  .30  Ark.,  04 104 

Swain  v.  Cheney,  41  N.  H.,  Sir. 349 

Swan  V.  State,  4  Humph.  (Tenn.),  1.30. . .  HK 

.swarth  v.  Kimball,  ■Hi  Mich.,  143 100 

Sweeney  v.  Baker,  13  W.  Va.,  100 53:J 

% 

Taleaferro  v.  Com.,  77  Va.,  411 Si 

Taylor,  Com.  v.,  10  Gray,  1!K) 43:1 

Taylor,  People  v.,  .5!)  Cal.,  (i40 19!) 

Taylor  v.  Porter,  4  Hill,  14.5,  149 118,  119 

Taylor,  Reg.  v.,  13  Cox's  C.  C,  77 1!H1 

Taylor,  State  v.,  58  N.  II.,  331  39 

Taylor,  United   States   v.,  3  McCrary, 

.■>oo lis 

Thayer,  Pei  pie  v.,  1  Parker,  Cr.  R.,  .595.  517 

Thayer  v.  Thayer.  101  Mass.,  Ill Hi 

The  State  Freight  Tax  Case,  15  Wall., 

333 S3 

Thody's  Case,  14  II<'n.  0,  3.5  b .581 

Thomas  v.  State,  5  How.  (Mi.ss),  S;) 5:0 

Thomjjson,  Reg.  v.,  10  Q.  B.,  Kji  ..  .5S.3,  .581, 

585 
Thompson,  Reg.  v..  Law  Rep.,  1  C.  C.  R., 

377 (liH 

ThiMiipson  v.  State.  10  Ind.,  510 S;i7 

Thompson.  Stat<!  v,.  13  Nev.,  140 3;(l 

Thompson  v.  The  State,  .37  Ark..  408, .. .  378 

Thorn  v.  Insurance  Co..  Hi)  Pa.  St.,  15.  70 

Toler  V.  State,  10  Ohio  St.,  .583 3.-, 

Tompson,  Com.   v..  3''u»h..  R.''-; HO 

Townsciid  v.  The  People,  3  Scam.,  3.'9.  33« 

Tralnor,  Corn,  v.,  133  Moss.,  415 .3,35 

Twitchell  v.  Com.,  7  Wall.,  331 133 

Tyler,  People  v.,  3'i  Cal.,  533 530 

Tyra  v.  Same,  3  Jletc.,  1 57H 

tr. 

Udderzook  v.  The  Com.,  26  Pa,   St, 

3'" 143 

United  States  v.  Canada 477 

United  States  v.  Case  of  Ilair  Pencils, 

1  Paine,  400 305 

Utioy  V,  Merrick,  11  Met,,  303 285 


■I 


TABLE  OF  CASES  CITED. 


XVU 


,301 
5.VI 
515 

m 

13 

507 

250 

104 

31!) 

3<.r 

lOli 

5*1 


85 

4;» 

io» 

i,  119 
l!Nl 
30 

113 
517 

Hi 

33 

.Wl 

5-« 

I,  5HI, 

5S5 

(!;W 

air 
:m 

TO 
.35 

NO 

an 

138 
530 
5ffl 


V. 

PAGE. 

Von  Buri'n  v.  State.  34  Jliss.,  513 4.33 

Vnno.',  rei)i)le  v.,  31  Cal.,  400 370 

Viiiulenuui'k  ct  ul.  v.  The  reople,  47  111., 

133 01 

Vumieipool,  State  v.,  1«  Vol.  C.  L.  N.,  34  330 
Van  Dyke  v.  Thompson,  1  Hi'.rrlngton 

R.,  10!) 1.33 

Vasquez,  Pc'ople  v.,  4!)  Cal.,  5(K) 377 

Vuux's  Case,  I't.  4,  Co.  4,5U,  Coin.  Dig., 

Indict.  L 343 

Virginia,  Ex  iinrtc,  loo  U.  S.,  31(1 117 

Volnier,  City  of  Eniituria  v.,  13  Kan., 

032. 44!) 

w. 

Woildell,  United  States  v.,  113  U.  S.,  70.  •»<!) 

Wade,  Com.  v.,  17  rick.,  3;»5    315 

Wade  V.  DeWitt,  30  Te.\Hs,  4i)l 300 

Waki'lield.  Ke.\  v.,  3  I.ewi.i,  C.  C,  379. . .  4 

Walker  v.  Sa\ivinet,  93  U.  S..  90 119 

Walker,  State  v..  31  Vt..  VM.  im 10.5, 4.'{3 

Walker  v.  Tlie  State,  8  Inil  ,  390 (i3 

Wallaee  v.  Has.sett,  41  Barb..  !)3 3  i5 

Waller,  United  States  v.,  1  Sawyer,  701.  287 
Walsli    V.  United    States,  3    Woodb.   & 

Minn.,  341 887 

Ward  V,  Farwell,  97  111..  .■)!)3 107 

Wanl.  Suite  v.,  49  Coiui.,  439 513 

Warner,    Ke.x    v.,    3    Kiiss.    on    Crimes 

(Sluirswood's  ed.).  43i 438 

Wuslilmrn  V.  Cuddiliy,  K  (iray,  431 I!)7 

WasliinKton,  State  v.,  1  Bay,  155 .507 

Walkins,  Kx  parU',  3  Pet.,  I!t3 3H:i 

Watts.  Uniti'd  States  v.,  8  Sawyer.  370  317 

Watts,  United  States  v.,  14  Ked.  Uep.,  130  390 

Webb  V.  Tlie  State,  8  Te.\.  Ct.  App.,  310  175 

Webber  v.  VirKinia,  10:1  U.  S.,  314 30 

Webster   Ca>.   v.   Hntehinson,  9  N.  W. 

Rep.,lM)l lUI 

Webster,  Com.  v.,  5  Cnshinff,  397,  310.  1 II.  515 

Webster,  HeK.  v.,  I)  Cox,  C.  C,  13 170 

Welburne,  State  v.,  7  .lere  Baxter,  57. . .  103 

Welsli  et  al.  V.  The  People,  17  III.,  .'W9. .  335 

Welton  V.  Slate,  1  Otto,  375 :i50 

Wesley  v.  The  State,  01  Ala.,  383 349 

West  V.  State,  3  Zabr  ,  313 5ii7 

Westervelt  v.dri'gK,  13  N.  Y..  303 118 

Weyrieh  v.  Tlie  People,  89  111.,  00 107 

Wheeler  v.  State,  34  Wis.,  .53 lOfi 

Whiteoml),  The  Slate  v.,  53  Iowa,  m. . .  ,30 

White  V.  Nieholls,  44  U.  S.  (3  How.),  31)0  .533 

Wliite,  Uex  v.,  8  Car.  &  P.,  743 175 

White  V.  State,  1  S.  &  M.,  149 407 

Whiteford's  Case,  «  Rand.,  731 371 

Whitehead,  Reg.  v.,  8  Car.  &  Payne,  338  473 


PAGE. 

White's  Case,  52  Miss.,  210 8.53 

Whitlield,  State  v.,  70  N.  C,  3.')» 4;« 

Whitson,  People  e.\  rel.  v..  71  111.,  20...  804 

WiKKins  V.  The  People,  93  U.  S.,  405. . . .  395 

Williams,  People  v.,  34  Jlieh.,  1.50 177 

Wilkes,  Rex  v.,  4  Burr.,  3.577 509 

Wilkinson,  Rex  v.,  Russ.  &  Ry.,  471....  .334 

Williams,  People  v.,  43  Cal.,  311 307 

Williams  et  al.  v.  The  People,  101  111., 

3S3 143,  4;«,  511 

Williams  et  al.  v.  The  People,  41  III.,  478  5.50 
Williams,  Rex  v.,  Ro.seoc's  Cr.  Ev.  (7th 

Amer.  ed.),  51 438 

Williams  v.  State,  13  Ohio  St.,  03.'..  113,  .57.S 

AVilliams  and  Avery,  State  v..  07  N.  C,  13  150 
Williamson,  State  v.,  1  Iloust.  Crlni.  C, 

1.55 335 

Willshire,  llej;.  v.,  14  Cox,  C.  C,  .511 70 

Willson,  Com.  v.,  1  C.ray,  im 197 

Willson,  State  v.,  3S  Conn.,  130 545 

Wilson,  Ex  parte,  ante,  38.3 508 

Wilson.  In  re,  18  Fed,  Rep..  .3:} 288 

Wilson  V.  State,  10  Ark.,  COI 112 

Wilson  V.  State,  24  Conn.,  .57 88 

Wilson  V.  The  Peojile,  91  111.,  3))9 347 

Wilson.  The  St^ite  v.,  '^i  Iowa,  314 89 

Wilson,  I'nitcd  States  v.,  7  Peters,  150. .  462 

Winder  V.  The  State,  35  Ind.,231 175 

Windham  v.  State,  30  Ala.,  09 S.51 

Winslow's  Case.  10  Am.  Law  Rev.,  017. .  207 

Wish,  State  v..  15  Neb.,  4l:^ 138 

Withers  v.  Hnekley  and  others,  30  How., 

iK) 138 

Wixon,  In  re,  13  N(!V.,  31!) 23S 

Wood,  Com.  v.,  11  (iray,  85 11 

Woodruff  v.  Parham,  8  Wall..  123 81 

Woleott,  People  v.,  51  Mieli.,  013 4:1.3,  581 

WriKht  V.  State,  5  Ind.,  390 311 

WriKht  V.  State,  7  Ind.,  331 311 

Wright's  Case,  8:j  ( i  ratt. ,  881 371 

Wright's  Case,  75  Va.  R.,  914 371 

Wroe  V.  State,  30  Ohio  St.,  400 1.55 

Wynian,  Peoi)lo  v.,  15  Cal..  70 520 

Wynehanier  v.  The  People,  13  \.  Y.,  433  118 
Wynn,    United   States  v.,   3  McCrary, 

800 288 

Y. 

YarbronRh,  Ex  porto,  110  U.  H.,  051 .....  8KJ 

Yates,  United  States  v.,  0  Fed.  Rep.,  801  288 

Yeo  V.  People,  49  111.,  413 198 

York,  Slate  v.,  .37  N.  11.,  175 4.3:1 

Younpf  v.  Martin,  8  Wall.,  .3.5-1 ,307 

Z. 

Zabriskio  v.  State,  14  Vroom,  040 370 


i 


.305 


I 


AMERICAN 


CRIMINAL    REPORTS. 


State  v.  Gordon. 

(46  N.  J.,  433.) 

Abduction:  Jurisdiction— Witness. 

1.  Person  abducted  competent  ■vvitness  for  state. —  On  trial  of  an  in- 
dictment for  unlawfully  convoying  or  taking  away  a  woman  child  under 
the  age  of  fifteen  years,  with  intent  to  seduce,  etc.,  under  section  83  of 
the  crimes  act,  she  is  a  competent  witness  to  testify  on  behalf  of  the 
state. 

3.  Jurisdiction  op  offense. — If  the  defendant  brought  her  witliin  this 
state  from  another,  and  here,  with  the  intent  set  out  in  the  statute,  in- 
terposed his  will  or  persuasion  between  her  and  her  guardian's  control, 
so  as  to  overcome  her  intention  to  return  to  her  home,  the  abduction  is 
accomplished,  .and  he  may  be  indicted  in  this  state. 

On  error  to  the  Court  of  General  Quarter  Sessions  of  the 
Peace  of  Hudson  County. 

Argued  at  June  term,  1884,  before  Beasley,  Chief  Justice, 
and  Justices  Depue,  Scudder  and  Eeed. 

For  the  state,  C.  II.  Winfidd. 

For  the  defendant,  Puster,  Daly  <fh  Ryerson. 

The  opinion  of  the  court  was  delivered  by 

ScuDDKu,  J,  The  defendant  was  indicted  under  section  82 
of  the  act  for  the  punishment  of  crimes,  for  the  abduction  and 
seduction  of  a  girl  under  the  age  of  fifteen  years.  He  Avas 
found  guilty  and  sentenced  to  the  state  prison  for  the  term  of 
five  years.  Many  objections  were  taken  at  the  trial  to  the 
admissions  of  testimony,  and  requests  to  charge  were  made  to 
the  trial  judge,  some  of  which  Avere  granted  and  others  refused. 
Two  exceptions  only  Avere  argued  on  the  return  to  the  writ  of 
Vol.  IV— 1 


i4 


2 


AMERICAN  CRIMINAL  REPORTS. 


error,  the  others  having  been  abandoned.    The  first   was  an 
exception  to  the  admission  of  the  witness  A,  R,  tlie  cliiUl  in 
question,  on  the  part  of  the  state,  tagainst  the  defendant,  because 
she  was  alleged  to  be  the  wife  of  the  defendant,  and  tlien  fore 
an  incompetent  witness.    "When  this  objection  was  made  by 
the  defendant's  counsel  the  court  directed  that  the  witness  be 
examined  on  the  voir  dire  as  to  the  alleged  marriage.    She  was 
questioned  as  to  the  form  of  a  marriage  ceremony  extracted  in 
part  from  the  nuirriage  service  used  in  the  I'rotcstant  Episco- 
pal Church,  and  said  to  have  been  repeated  b}-  the  parties  when 
they  were  together,  without  any  witness,  in  Brooklyn,  Long 
Island,  state  of  Xew  York,    She  denied  that  there  was  auv 
such  ceremony.    She  was  shown  a  certificate  in  writing,  signed 
by  her  and  the  defendant,  dated  Xovember  2,  l8s;{,  which 
stated  that  they  had  been  married  by  repeating  certain  por- 
tions of  the  Episcopal  marriage  service.    She  testified  that 
when  she  signed  it  he  told  her  it  was  only  a  joke.    Certain  let- 
ters wore  shown  her,  Avhich  she  admitted  had  been  written  and 
signed  by  her  after  Xovember  2,  1SS3,  in  which  she  addressed 
him  as  her  husband  and  called  herself  his  wife.    These,  she  said, 
were  addressed  and  signed  in  that  way  because  he  told  her  to  do 
so,  and  she  had  agreed  and  intended  to  marry  him  in  the  f(jllow- 
iug  rpring.     On  December  3, 1S83,  she  left  her  home  in  Astoria, 
and  went  with  him  to  the  mavor's  office  in  the  citv  of  Xl  ^v  York 
to  be  married,  but  the  mayor  declined  to  marry  them  because 
of  her  youthful  appearance.    On  the  same  day  she  went  with 
him  to  Jersey  City,  where  she  was  introduced  as  his  wife  by 
the  defendant  to  friends  of  his  residing  there.     She  was  silent 
before  them.    They  occupied  the  same  bed-room  at  a  hotel  in 
that  city  for  a  night,  a  day  and  part  of  the  second  niglit,  wlien 
the  defendant  was  arrested  on  pursuit  and  comi)laint  of  her 
ado])ted  father,  who  had  never  given  his  consent  to  a  mar- 
riage between  them.    Her  parents  were  both  dead.    It  had  alst» 
been  testified  by  her  older  sister  that  she  was  bom  in  October, 
1800.  and  was  under  the  age  of  fifteen  years  when  the  alleged 
abduction  took  place.    The  defendant's  counsel  offered  section 
1  of  the  Xew  York  marriage  act  (R,  S,,  vol.  Ill,  p.  227),  by 
which  marriage  in  that  state  is  a  civil  contract,  to  whiclj 
the  consent  of  parties  capable  in  law  of  contracting  shall  be 
essential ;  and  also  section  3  of  the  same  act,  making  void  a 


sta 

ru 

of 

wit 

ent 


ye; 

pai 
otl 

inc 


A 


STATE  V.  GORDON. 


f 


marriage  Avhorc  cither  of  the  parties  to  a  h^.arriage  shall  Le 
incai)ablc,  lor  want  of  age  and  understanding,  01  consenting  to 
a  marriage,  etc.,  or  when  the  consent  of  either  pauy  shall  have 
been  obtained  by  force  or  fraud ;  also  sectirsn  20  of  the  New 
York  crimes  act,  making  it  criminal  to  take  away  any  female 
under  the  age  of  fourteen  years  from  her  father,  mother, 
guardian  or  other  person,  without  their  consent,  either  for  the 
purpose  of  prostitution,  concubinage  or  marriage.  After  the 
above  examination  the  court  allowed  the  witness  to  bo  sworn 
on  the  part  of  the  state,  and  to  this  an  exception  Avas  prayed, 
allowed  and  sealed. 

There  was  no  error  in  the  admission  of  this  witness  to  testify. 
If  slie  hid,  in  her  examination,  admitted  that  she  was  the  wife 
of  the  defendant,  and  that  his  allegations  were  true,  a  different 
question  might  have  arisen  under  the  statutes  of  the  state  of 
Kew  Yoi'k,  where  it  was  claimed  the  ceremonj'  of  marriage 
took  place ;  but  she  denied  them,  and  whether  they  were  mar- 
ried or  not  was  a  disinited  question  in  the  cause.  The  court  did 
right,  at  that  stage  of  the  trial,  in  accepting  her  statements  on 
the  voif  dire  for  the  purpose  of  allowing  her  to  be  sworn  in 
behalf  of  the  state  against  the  defendant.  It  Avould  be  a  jxti- 
tio  princijyii  to  assume,  on  a  bare  allegation,  that  she  was  the 
wife  of  the  defendant,  and  therefoi'e  disqualified  to  be  a  wit- 
ness against  him,  when  one  of  the  questions  at  issue  was 
whether  there  was  ever  a  valid  marriage  between  them,  lie 
was  undoubtedly  a  competent  witness,  by  statute,  to  prove  his 
defense,  and  there  was  therefore  the  greater  reason  why  the 
state  should  not  be  deprived  of  her  testimony.  The  contrary 
rule  would  exclude  the  most  important  testimony  on  the  jiart 
of  the  state,  and  leave  the  defendant  to  prove  his  own  case 
without  possibility  of  contradiction,  when  they  only  were  pres- 
ent, and  artifice,  constraint  or  force  was  used  to  extort  apparent 
consent  to  marriage  from  a  mere  child  by  the  overpowering 
will  of  a  man  so  nmck  older  than  she.  He  was  forty-seven 
veal's  old. 

It  is  only  where  there  has  been  a  valid  marriage  that  the 
parties  are  excluded  from  giving  evidence  for  or  against  each 
other  by  the  common  law.  Ros.  Crim.  Ev.,  124;  1  Greenl.  Ev., 
§  339;  Whart.  Crim.  Ev.,  390.  It  has  therefore  been  held  in 
indictments  for  bigamy,  after  proof  of  the  first  marriage,  that 


AMERICAN  CRIMINAL  REPORTS. 


the  second  woman  married  is  a  competent  witness  against  her 
husband,  for  the  second  marriage  is  void  and  she  is  no  wife. 
To  test  this  competency  the  woman  may  be  examined  on  the 
voir  dire  as  to  this  void  marriage.  Whart.  Crim.  Ev.,  §§  SOS- 
SOT;  1  East,  P.  C,  4G0 ;  Seelei/  v.  Kiujell,  13  N.  Y,,  542. 

Courts  have  even  gone  further  and  lield  that  on  the  trial  of 
an  indictment  for  the  forcible  abduction  and  man-Jigc  of  a 
woman,  under  the  statute  prohibiting  such  marriage,  she  may 
be  a  witness  for  the  crown,  and  that  this  is  not  a  case  Avithin 
the  general  law  excluding  tlio  testimony  of  a  wife  against  her 
husband,  for  she  is  not  legally  his  wife,  a  contract  of  marriage, 
like  any  other  contract  obtained  by  force,  having  no  obligation 
in  laAV.  Brown^s  Case,  Vent.,  243 ;  Fiilwoocrs  Case,  Cro.  Car., 
483;  liexv.  Walcefield,  2  Lewin,  C.  C,  270;  1  Hale,  P.  C,  301; 
2  Hawk.  P.  C,  ch.  40,  §  78;  2  Russ.  Cr.,  084. 

Our  statute  enacts  that  every  such  marriage,  as  therein  de- 
scribed, of  any  woman  child  within  the  age  of  llftocn  years 
shall  be  void  if  tlic  man  contract  matrimony  with  her  without 
the  consent  of  her  father,  mother  or  guardian.  In  any  view 
that  may  be  taken  of  the  alleged  contract  of  marriage  and  the 
acts  attending  and  following  it,  it  is  evident  that  there  are 
some  facts  to  which  slie  must  necessarily  testify  to  prevent  tliis 
statute,  intended  for  the  protection  of  parents  and  their  young 
female  children,  from  becoming  useless.  The  court  were  right 
in  admitting  the  girl's  testimony,  and  leaving  its  credibility  to 
the  jury. 

The  second  point  of  exception  that  was  argued  by  counsel 
was  that  the  court  charged  in  effect,  among  other  tilings,  that 
if  the  jury  found  that  the  defendant  brought  the  girl  to  Jersey 
City,  and  there  detained  her  either  by  force  or  by  persuasion, 
it  was  such  an  unlawful  conveying  and  taking  away  within 
this  state  as  is  contemplated  by  the  statute.  This  infraction 
was  correct.  A  girl,  within  the  protection  of  the  statute,  is  in 
the  possession,  custody  or  governance  of  her  parent  or  guard- 
ian though  she  be  not  in  the  same  house  with  them.  If 
not  in  their  actual  i)ossession  when  in  the  street,  in  school 
or  in  some  place  of  public  resort,  or  visiting  in  Jie  house  of 
friends,  slie  is  so  constructively.  She  is  still  in  their  custody  for 
care,  keeping  and  security,  and  unde.'  Iheir  governance,  for 
they  may  control  her  will  by  their  conanand.    If  she  go  upon 


STATE  V.  OORDON. 


i:-y 


; 
\ 

i 


a  journey,  they  may  follow  her  and  <lirect  her  return  to  them. 
The  mere  fact  that  she  entered  anothcu'  state  does  not  alter 
her  relations  or  obligations  with  her  [Kirents  or  guardian. 
Whenever  the  defendant,  with  the  intent  set  out  in  the  statute, 
interjjosed  his  will  or  persuasion  between  her  aiul  her  guard- 
ian's control,  so  as  to  overcome  her  purpose  and  intention  to 
return  to  her  home,  the  abduction  is  accomplished.  Xor  can 
her  willingness  to  come  to  this  state  Avith  him  take  away  his 
offense,  for,  by  our  statute,  he  can  give  no  consent,  and  when- 
ever she  intends  to  return  to  her  guardian,  he  may  not  dissuade 
or  oi)))oso  her.  In  this  sense  I  understand  the  words  used  by 
the  court  in  Eef/lna  v.  Mi/coak,  12  Cox,  C.  C,  28,  where  it  is 
said  that  a  girl  who  is  away  from  her  homo  is  still  in  the  cus- 
tody or  possession  of  her  father  if  she  has  the  intention  of 
returning  to  him.  Earon  J'ramwcll,  in  liiijhia  v.  (Jlijier,  10 
Cox,  C.  C,  402,  says:  "  If,  finding  she  lias  left  her  home,  ho 
[the  defendant]  avails  himself  of  that  to  induce  her  to  continue 
av.ay  from  her  father's  custody,  in  my  judgment  he  is  guilty  if 
his  i)ersuasion  operated  on  her  miiul  so  as  to  induce  her  to 
leave."  Nothing  can  be  i>l:!iner  in  this  case  than  that  his  per- 
suasion induced  her  to  leave  her  home  in  Astoria  and  come 
with  him  to  Jersey  City,  and  wIkmi  there,  after,  as  she  testifies, 
he  had  read  to  her  the  account  in  the  papers  of  her  elopement 
with  him,  she  wished  to  return  to  her  lionie,  ho  sought,  by  ])er- 
suasion,  to  keep  her,  and  opposed  her  expressed  wishes  to  go 
back.  The  mere  fact  of  her  leaving  her  guardian's  homo  and 
coming  to  this  state  with  the  defendant  might  not  complete 
the  crime  with  which  he  was  charged,  but  when  tho  intent  was 
here  manifested  to  seduce  or  contract  matrimony  with  her  by 
proclaiming  her  as  his  wife  in  the  presence  of  his  friends,  and 
keei)ing  her  a  day  and  night  in  a  sh^jping  room  at  a  hotel,  and 
oi)p(».sing  her  wish  to  return  home,  he  became  amenable  to  the 
pimisliment  allixed  by  our  law  to  this  statutory  crime.  These 
facts,  which  appear  in  tho  case,  if  found  by  the  jury,  Avould 
constitute  the  crime  of  abduction  within  this  state,  and  there 
was  no  error  in  tho  direction  of  the  court. 
The  judgment  is  affirmed. 


6 


AMERICAN  CBIMINAL  REPORTS. 


State  v.  Gedicke. 

(43  N.  J.,  80.) 

Abortion:  Administering  noxious  drugs— Evidence  —  Indictment 

1.  Declakatioxs  to  rtivsiciAN  ^oucmxo  PREGNANCY.— Declarations  made 

to  a  physician  of  bodily  feelings  and  symptoms  of  pregnancy  at  the 
time  of  examination,  are  admissible  in  evidence  as  paii  of  the  facts  on 
which  his  opinion  is  founded. 

2.  Same  —  Cross-examination.—  A  witness  of  the  state,  cross-examined  as 

to  the  declarations  of  the  patient  concerning  her  pregnancy,  made  to 
him  as  a  physician  during  his  examination  of  her  condition,  cannot 
be  re-examined  as  to  other  unconnected  assertions  in  the  same  conver- 
sation, charging  the  defendant  with  criminal  acts  to  produce  mis- 
cr.rriage. 

8.  Noxious  nature  of  drugs.— The  thing  administered  or  prescribed  to 
procure  the  miscarriage  of  a  woman  then  jiregnant  with  child  (Crimes 
Act,  §  7"i)  must  be  noxious  in  its  nature;  but  it  is  not  necessary  to  prove 
that  it  will  produce  that  effect. 

4.  Inok'tment,  when  objection  must  be  taken  to.— If  the  negative  alle- 
gation that  the  mother  or  child  did  not  die,  wliich  lessens  the  jjunish- 
ment  under  the  statute,  be  necessary  in  the  indictment,  section  53  of 
the  criminal  procedure  act  requires  that  any  objection  to  the  oiuLssion 
tihall  be  taken  before  the  jury  is  sworn,  and  it  is  then  amendable. 

Oil  error  to  the  Quiirter  Sessions  of  the  County  of  Essex. 
Aririicd  at  November  Term,  1880,  before  Justices  JJcpuo, 
Scudder  and  Knapp. 

Tor  the  defendant,  J.  Franh  Fort  and  8.  KallKoh. 
Vi)Y  the  state,  G.  iY.  Alcel  and  E.  F.  Siodion,  J)\ 

The  opinion  of  the  court  was  delivered  by 

ScuoDER,  J.  The  indictment  in  this  case,  found  under  kpc- 
tion  75  of  the  act  for  tlie  punishment  of  crimes,  ('har;.'-es  that 
the  defendant  did,  maliciously  and  without  lawful  jiistilieulion, 
administer,  prescribe  for,  advise  and  direct  one  S.  S.,  then  and 
there  being  pregnant  with  child,  to  take  and  swallow  eei-tain 
pjisons,  drugs,  medicines  and  noxious  things,  witli  intent  tlien 
and  tlierc  to  cause  and  procure  the  miscarriage  of  the  said  S. 
S.,  contrary  to  the  form  of  the  statute,  etc. 

The  second  count  charges  the  use  of  certain  instruments  and 
means,  with  like  averments  of  intent. 

The  defendant  was  found  guilty,  and  judgment  and  sentence 
were  pronounced.    Error  has  been  assigned,  founded  on  admis- 


\ 


4 


STATE  V.  GEDICKE.  f 

sions  of  evidence,  exceptions  to  the  charge  of  the  court,  and 
on  the  record. 

Tlie  fust  exception  is  to  allowing  Dr.  Bleye,  a  consulting 
pliysician,  who  was  called  in  by  her  father,  to  testify  how  he 
I  examined  the  complaining  Avitness,  S.  S,,  to  ascertain  her  preg- 

1  nancy,  and  to  relate  what  she  said  to  him.     These  declarations 

i  were  made  by  her  to  the  physician  at  the  time  ho  was  called 

I  upon  as  an  expert  to  determine  the  state  of  her  health,  and  were 

?  statements  of  her  bodily  feelings,  and  the  symptoms  of  her 

I  supposed  pregnancy.    This  evidence  was  admissible.     It  is  an 

I  exception  to  the  usual  rule  excluding  hearsay  evidence,  and  it 

I  is  foimded  on  the  necessity  of  learning  from  the  patient  herself 

facts  within  her  own  knowledge,  Avhich  the  physician  should 
Icnow  to  f(jrm  an  intelligent  and  accurate  opinion  of  her  present 
health  and  situation.  The  usual  symptoms  of  pregnancy  in  its 
early  stage  must  be  obtained  from  the  patient  herself,  such  as 
the  ol)struction  of  tlie  usual  course  of  nature,  morning  sickness, 
headache,  nervousness,  and  other  indications  hidden  from  the 
observation  of  otliers ;  these,  in  connection  with  a  physical  ex- 
amination of  the  ])arts  of  the  body  ordinarily  affected  by  en- 
largement ami  other  changes,  are  the  facts  on  which  the  opinion 
of  the  oxi)ert  witness  is  founded.  It  is  right  that  he  should 
have  tliese  facts  and  state  them  to  the  jury,  that  they  may 
f  know  wliether  his  conclusions  arc  careful,  skilful  and  reliable. 

;  If  tlie  object  of  the  examination  is  to  care  for  her  health,  there 

\  is  tlic  strongest  inducement  for  her  to  speak  the  truth;  if  she 

;  i)e  infhioiuMul  by  any  other  ccmsidei'ation,  the  jury  must  dcter- 

:;  mine  the  W(M<j:ht  of  tlir  evidence,  as  in  other  cases.     This  was 

i  tlie  kii\d  of  testimony  received  in  this  case,  to  which  objection 

I  was  nuide,  and  it  was  properly  admitted.     Bnrlcr  v.  2fe)'rian, 

]  1  Allen.  M'i'i;  Ihicon  v.  (J/i(ii'lton,  7  (hish.,  581;  Aveson  v.  Ktn- 
na/fd,{'>  Kast,  ISS;  1  Greenl.  Ev.,  102;  Wharton's  Cr.  Ev.,  271. 
It  is  fiu'tlier  objected  that  there  was  error  in  the  charge  of 
the  court,  "  that  it  was  not  necessary  that  the  medicine,  drug 
or  noxious  thing  advised  to  be  taken,  administered  to  or  pre- 
scribed for  her  should  be  capable  of  lu'ocuring  a  miscarriage, 
because  that  would  be  graduating  the  guilt  of  the  defendant 
by  the  success  or  failure  of  the  attempt,  wlien  tlie  statute 
makes  the  attem])t  a  crime  regardless  of  the  success."  The 
collocation  of  the  words  in  this  statute  retpiires  that  the  thing 


8 


AMERICAN  CRIMINAL  REPORTS. 


used  to  effect  the  miscarriage  should  be  noxious  —  that  is, 
hurtful.  The  words  "  poison,  drug,  medicine  or  noxious  thing," 
indicate  the  cliaracter  of  the  means  that  must  bo  used.  The 
rule  copulatlo  verho?'um  indicat  acceptailoneni  in  eodem  sensu, 
and  the  maxim  noscitur  a  socils  (Broom's  Maxims,  ■'■^:>0),  gov- 
ern the  construction  of  these  words  as  they  stand  connected 
in  this  statute.  The  poison,  drug,  medicine  or  other  thing 
must  be  noxious  or  hurtful;  if  it  possesses  this  quality,  and 
is  administered,  prescribed,  advised  or  directed  to  bo  taken 
with  the  intent  to  cause  or  procure  a  miscarriage  when  the 
woman  is  then  pregnant  with  child,  the  crime  is  complete, 
wliether  in  the  opinion  of  others  it  is  capable  of  producing 
that  result  or  not.  It  is  dangerous  to  the  life  and  hcaltli  of 
the  mother  and  to  the  existence  of  the  child  to  experiment 
with  any  drug,  medicine  or  noxious  thing  to  produce  a  miscar- 
riage. Tlie  ignorance  of  the  operator  may  lead  him  to  select 
something  tliat  will  not  have  the  effect  he  designs;  but,  if  it  bo 
noxious  in  any  degi'ce,  though  in  the  judgment  of  others  wlio 
have  greater  Imowledge  it  cannot  produce  the  effect  intended, 
it  is  witliin  the  statute.  Tlie  words  defining  the  means  to  be 
used  were  brought  into  our  statutes  by  the  act  of  ^^Farch  1, 
1849.  Pamph.  L.,  p.  190.  It  Avas  passed  to  remedy  an  ad- 
Judged  defect  in  our  law,  that  to  cause  or  procure  abortion  be- 
fore the  child  is  quick  was  not  a  criminal  offense  at  common 
law  or  by  any  statute  of  our  state.  State  v.  Cooper,  2  Zab.,  52. 
As  soon  as  the  question  was  raised  and  the  doubt  suggested, 
this  act  was  passed  to  punish  the  offense.  The  design  of  tho 
statute  was  not  so  much  to  prevent  the  procuring  of  abortions, 
however  offensive  these  may  be  to  morals  and  decency,  as  to 
guard  tlie  health  and  life  of  the  female  against  tlio  conse- 
quences of  such  attempts.  The  guilt  of  tho  defendant  is  not 
determined  by  the  successor  failure  of  tlie  attenq)t;  but  tho 
measure  of  his  punishment  is  graduated  by  the  fact  Avhether 
the  woman  lives  or  dies.    /State  v.  Jliirplii/,  3  Dutclior,  112. 

This  law  was  further  extended  March  2(5,  1872  (ranq)h.  L,, 
p.  45,  Rev.,  p.  240,  §  75),  to  protect  the  life  of  the  child  also, 
and  inflict  the  same  punishment,  in  case  of  its  death,  as  if  tho 
mother  should  die.  The  statute  of  1849  introduced  tho  words 
"  any  poison,  drug,  medicine  or  noxious  thing,"  and  tUcy  aro 
still  retained  in  that  form. 


A 


thing  a 


STATE  V.  GEDICKE.  9 

It  n]')pears  that  they  originated  in  the  statute  9  Geo.  IV., 
c.  31,  §  13,  where  we  find  in  the  first  clause,  relating  to  pro- 
curing the  miscarriage  of  a  Avoman  quick  with  child,  the 
Avords  "  any  poison  or  other  noxious  thing;"  Avhile  in  the  second 
cUiuse,  relating  to  miscarriage  of  a  woman  not  quick  with 
child,  tlic  woi-ds  "any  medicine  or  other  thing"  are  used.  In 
a  later  statute  (2-lr  and  25  Yic,  c.  100,  §  59),  the  Avords  "any 
poison  or  other  noxious  tiling"  are  used,  Avhether  the  woman 
be  or  be  not  quick  Avith  child,  the  intent  to  procure  the  mis- 
carriage in  its  effects  on  the  health  of  the  Avoman  being  looked 
upon  as  ih'i  main  element  of  the  offense.  This  change  from 
"other  thing"  to  "other  noxious  thing,"  in  all  cases  is  hn- 
portant  Avhen  considering  the  proper  construction  of  our  OAvn 
statute,  Avhich  so  closely  resembles  it. 

The  Massachusetts  statute  referred  to  in  one  of  the  aboA'c 
cited  cases,  as  similar  to  ours,  found  in  LaAvs  of  18-15,  ch.  27,  uses 
the  same  words.    In  General  Laws,  ch.  105,  §  9,  the  terms  are, 
j  "  any  poison,  drug,  medicine,  or  other  noxious  thing,"  the  Avord 

i  "other"  b.'ing  put  before  "noxious,"  as  in  the  latest  EnglisK 

^  statute,  thereby  changing  the  effect,  so  as  to  emphasize  the  rule 

of  construction  before  named.     In  an  indictment  under  tlio 
former  act  of  18-15,  it  AA'as  held  that  it  Avas  not  required  that 
the  govevuMient  should   prove   what  the  medicine   Avas,  or 
,^  Avhcther  it  was  such  as  Avould  teiul  to  produce  tiie  effect  in- 

^  tended,  or  Avhether  it  Avas  actually  taken  by  the  Avoman ;  nor 

l  that  the  liquids  and  pills  procured  for  her,  and  Avhlch  slie  avjij 

a  advised  to  take  for  the  purpose  of  producing  a  miscarriage, 

:;  Avcro  noxious  things.     The  reasoning  of  the  court  is,  that  it 

4  may  well  be  that  the  legislature  has  tlioug])t  fit  to  ])unlsh  per- 

sons for  thus  tampering  with  a  wonum's  health  and  life,  though 
they  may  be  utterly  mistaken  as  to  the  character  and  eU'ect  of 
the  medicine;  antl  if  it  were  necessary  for  the  government  to 
prove  the  (juality  of  the  medicine,  It  might  often  be  difficult  to 
convict  oU'enders  Avho  had  used  tlie  most  noxious  drugs.  This 
is  a  very  good  reason  for  striking  the  AVord  "noxious"  out  of 
the  statute,  l)ut  as  long  as  it  renuiins  it  must  have  a  meaning, 
and  all'ect  tlie  constructi(ni  of  the  act. 

In  7Av/.  r.  Isaacs,  9  Cox,  Cr.  Cas.,  228,  the  court  says, 
"The  thing  intended  by  the  statute  must  bo  noxious  in  its 
nature;"  and  in  Reg.  v.  Hannah,  13  Cox,  Cr.  Cas.,  5-18,  "the 
thing  administered  must  bo  noxious  in  itself,  and  not  merely 


10 


AMERICAN  CRIMINAL  REPORTS. 


when  taken  in  excess;"  in  Beg.  v.  BMeman,  12  Cox,  Cr. 
Cas.,  4GT,  BramwcU,  B.,  said,  during  the  argument:  "A  nox- 
ious thing,  Avithin  the  statute,  moans  a  thing  tliat  >vill  pro- 
duce the  effect  mentioned  in  the  statute;  that  is,  a  miscarriage. 
This  appears  to  have  produced  tliat  effect."  Tlic  objection 
to  this  doctrine  in  the  last  case  is  that  the  statute  does  not 
say  that  tlie  tiling  administered  nmst  be  such  as  will  jh'o- 
duce  tlie  miscarriage,  but  only  that  it  shall  be  noxious;  and  it 
was  not  called  for  in  the  case,  for  the  thing  used  was  clearly 
noxious  and  produced  the  designed  effect.  Noxiousness  may 
be  inferred  from  the  effects.  lierj.  v.  JfuUls,  12  Cox,  Cr.  Cas., 
403.  But  where  the  miscarriage  is  not  produced  the  bui'den 
must  be  on  the  prosecution  to  show  that  the  thing  used  was 
noxious  in  its  character  —  notliing  more.  As  a  rule  of  evidence 
this  can  make  but  little  practical  diiliculty,  for,  if  pregnancy 
be  shown,  as  it  must  be,  under  the  statute,  and  the  person 
charged,  snj)posing  it  to  exist,  administers  anything  to  effect 
it,  very  slight  proof  of  the  character  of  the  thing  administered 
will  be  required.  Such  things  are  usually  known,  or  their 
effects  are  apparent.  In  this  case  an  unmarried  woman  went  to 
the  defendant's  drug-store  to  learn  of  him,  as  she  says,  Avhetlier 
she  was  in  the  family-way,  being  Avell  assured  of  the  fact  her- 
self, for  she  further  says,  "  I  told  him  I  wanted  to  see  if  I 
could  get  clear  of  the  child."  He  i)rescril)ed  for  her,  or  gave 
her  Dr.  Clarke's  female  periodical  i)ills.  He  had  studied  medi- 
cine, and  knew  that  the  medicine  given  her  was  an  emniena- 
gogue.  She  gave  him  SIO,  said  she  would  probably  come 
again;  did  go  afterwards, and  he  examined  hei'  with  a  catheter, 
or  something  hke  it,  in  a  nuuiner  dangerous  to  a  woman  in  her 
supposed  condit'on,  according  to  the  testimony  of  [)liysic'ians 
who  were  examined  in  the  cause.  These  Avere  her  statements, 
and  they  illustrate  the  kind  of  evidence  that  is  commonly  at- 
tainable, even  Avhen  tlie  miscarriage  is  not  accom])lished,  as  it 
Avas  not  in  this  case.  But  if  the  diiliculty  of  obtaining  proof  in 
those  c;;sos  were  greater,  yet  the  statute  will  admit  of  no  other 
construction  than  that  the  thing  administered  must  be  noxious 
or  hurtful  in  some  degree,  though  it  does  not  require,  by  its 
terms,  that  the  thing  should  bo  capable  of  producing  a  miscar- 
riage. There  was,  therefore,  no  error  in  the  refusal  of  the 
judge  to  charge  as  rocpiostod. 
In  answer  to  the  error  assigned  on  the  sufliciencv  of  the  in- 


STATE  V.  GEDICKE. 


11 


(lictment  because  it  docs  not  state  -whether  the  patient  died  or 
not  in  consequence  of  the  thing  prescribed  or  the  operation 
porfornicd,  tills  is  not  necessary.  The  general  rule  is  that 
■\vlicro,  by  the  statute,  there  is  a  gradation  of  offcusos  of  the 
same  species,  as  in  the  degrees  of  })unishinent  annexed  to  the 
offense,  it  is  not  required  to  set  forth  a  negative  allegation  as 
in  tills  case,  that  slie  or  the  child  did  not  die.  It  is  no  objec- 
tion that  it  cluu'gcs  the  acts  which  constitute  the  minor  offense 
unaccompanied  by  any  averment  that  the  aggravating  cir- 
cumstances did  not  exist.  In  such  cases  the  offense  charged 
is  to  be  deemed  the  minor  ofteiise  and  punishable  as  such. 
O >iinn(»iic('<tlth  V.  Wood,  11  Gray,  85;  Lamed  v.  Coininonwcalth, 
VI  :\Ietc.,  i24(). 

Ml'.  IJisliop,  in  liis  Statutory  Crimes,  §  107,  says,  although 
the  indictment  must  sot  out  every  element  of  crime  which 
enters  into  the  inmishment,  since  otherwise  it  does  not  set  out 
fully  the  offense,  the  true  view  as  to  this  question  of  plead- 
ing seems  to  liavo  been  expressed  by  Lord  Dcnman  thus:  "It 
i^  the  oli'ense  which  is  the  subject  of  indictment  and  not  the 
punishment." 

In  State  v.  Dralce,  1  Yroom,  422,  the  Avoman  died,  and  it  "was 
necessary  to  plead  that  fact  in  the  indictment  to  reach  the 
greater  crime  and  ])unishmont;  in  this  case  she  did  not  die,  nor 
did  the  cliihl  die,  and  the  derendant,  if  guilty,  Avould  only  bo 
amenable  to  the  lighter  punishment.  The  indictment  charges 
him,  in  the  words  of  the  statute,  with  attempting  to  procure  a 
miscarriage,  and  it  is  allicient  without  the  negative  averment 
that  he  ilid  not  cause  the  death  of  the  woman  or  child.  Dut 
if  it  wer(!i  otherwise,  and  this  exception  were  good,  it  comes 
too  l;it(^:  for,  by  section  53  of  the  criminal  procedure  act,  every 
objection  to  any  indictment  for  any  defect  of  form  or  sub- 
stance apparent  on  the  face  thei'oof,  shall  be  taken  by  demurrer 
or  motion  to  (piash  such  indictment  before  the  jury  shall  be 
sworn,  and  not  afterwards,  and  it  is  made  amendable  b}'  the 
court.  This  objection  is  but  formal,  it  was  amendable,  and 
was  not  taken  in  time. 

Another  error  assigned  is  to  the  admission  of  the  evidence 
of  Dr.  Herman  C.  Bleye,  in  ])ermitting  him  to  testify  to  a 
conversation  had  on  February  20,  1ST!*,  with  the  complaining 
witness,  and  in  corroboration  of  her  testimony,  Avherein  she 


w 


12 


AMEKICAN  CRIMINAL  REPORTS. 


stated  to  hun  facts  criminating  the  defendant.    It  is  not 
claimed  on  the  part  of  the  state  that  tliis  evidence  woukl  have 
been  competent  until  it  was  made  so  by  the  course  of  exam- 
ination and  testimony  offered  by  the  defendant.    The  proof  of 
the  defense  was  principally  that  given  by  the  defendant  him- 
self, denying  the  pregnancy  at  the  time  alleged,  his  knowledge 
of  it,  and  the  giving  of  medicine  or  the  use  of  instruments  to 
produce  miscarriage.    Some  additional  proof  Avas  offered  to 
show  that  the  woman's  motive  in  asserting  her  pregnancy  was 
to  bring  about  a  marriage  between  her  and  her  alleged  seducer, 
and  that  Dr.  Bloye  Avas  brought  in  by  the  father  to  determine 
her  condition.    During  the  cross-examination  of  some  of  the 
defendant's  witnesses  there  was  a  continued  effort  to  get  into 
the  case  the  declarations  of  S.  S.,  to  her  fatlier  and  to  Dr. 
Bleye,  as  to  her  visits  to  Dr.  Gedicke,  and  liis  conduct  to- 
Avards  her.    Dr.  Bleye  AA'as  called  by  the  state  in  rebuttiil,  and 
asked  concerning  his  examination  of  S.  S.,  and  tlie  st;itcmcnts 
she  made  to  him  of  her  symptoms  and  feelings.     This  was 
objected  to,  but  admitted,  and  legally  admitted,  as  luis  l)eou 
aboA'e  determined.    This  testimony  Avas  relevant  on  the  ques- 
tion wlietlier  she  Avas  pregnant  at  the  time  it  Avas  said  tlie  de- 
fendant prescribed  for  her.    The  Avitness  Avas  cross-examined 
briefly  and  cautiously  as  to  his  iuA-estigation  of  the  pregnancy, 
and  no  further  tlian  he  had  gone  in  the  chief  examiiuition. 
On  the  part  of  the  state  it  Avas  then  claimed  that,  as  tlie  de- 
fense had  gone  into  the  conversation  between  her  and  Dr. 
Bleye  about  her  pregnancy,  all  that  she  had  said  to  him  at 
ll>r'  time,  including  her  statement  of  her  visits  to  Dr.  (iedieke, 
/n-[y.g  of  medicine,  and  use  of  an  instrument  to  procui'o 
nn..        LiUi'c,  Avas  made  competent,  and  that  they  were  cut  it  led  to 
*tv  \v\-;.;  conversation.    This  evidence  Avas  finally  admitted, 
tlioiiri!.  the  defendant's  counsel  objected.     Its  purpose  and 
effect  Avas  to  strengthen  the  evidence  of  the  principtil  Avitness 
by  her  declarations  to  others  of  the  guilty  acts  of  the  defeiul- 
ant  made  several  Aveeks  after  they  Avere  said  to  have  occurred. 
This  is  hearsay  evidence  in  its  most  objectioiuible  form.    Ad- 
mitting, as  it  is  claimed  by  the  prosecution,  that  ])arts  of  this 
conversation  concerning  j)regnancy  during  the  examination  of 
the  physician  to  determine  the  fact,  Avere  introduced  by  tho 
defense,  and  in  the  confused  condition  of  the  evidence  sent  up 


STATE  V.  GEDICKE. 


18 


■with  the  hill  of  exceptions  it  is  difficult  to  tell  exactly  how  it 
(lid  come  into  the  case,  the  cross-examination  or  re-examina- 
tion would  be  limited  to  what  she  said  to  the  physician  con- 
cernin;!^  licr  feelings  and  symptoms  of  i>regnancy,  Avliich  was 
the  subject-matter  of  his  inquiry  a3  an  expoi't,  and  could  not 
be  extended  to  distinct  charges  of  crime  made  against  the  de- 
fendant when  they  were  alone,  and  afterwards  in  the  presence 
of  her  father,  concerning  which  the  defendant's  counsel  had 
aslcod  no  questions,  and  permitted  no  statement  to  be  nuide. 

In  Prtnce  v.  Samo,  7  A.  &  E.,  027,  the  court  says  that  a  wit- 
ness of  the  plaintiff  cross-examined  as  to  declarations  of  the 
plaintiff  in  a  particular  conversation  cannot  be  re-examined  as 
to  other  unconnected  assei'tions  of  the  plaintiff  in  the  samo 
conversation,  although  connected  with  the  subject  of  the  suit. 
It  must  not,  therefore,  be  assumed  that  cross-examination  in 
part  of  a  convei-sation  necessarily  lets  in  proof  of  the  whole  of 
it.  This  case  qualifies  the  language  of  the  court  in  Queen's 
Case,  2  B.  &  B.,  297,  where  Abbott,  C.  J.,  says,  "  I  think  the 
counsel  has  a  right  on  re-examination  to  ask  all  questions 
which  may  be  proper  to  draw  out  an  explanation  of  the  sense 
and  menning  of  the  expressions  used  by  the  witness  on  cross- 
examination,  if  they  are  in  themselves  doubtful,  and  also  of  the 
motive  by  Avhich  the  witness  Avas  induced  to  use  tliose  expres- 
sions; but  he  has  no  right  to  go  further  and  inti'oduco  nuitter 
new  in  itself,  and  not  suited  to  the  purpose  of  explaining  either 
the  expressions  or  the  motives  of  the  witness.  I  dislinguish," 
he  says, ''  between  a  conversation  with  a  party  to  a  suit,  crim- 
inal or  civil,  and  a  conversation  with  a  third  person,"  "What 
follows,  as  to  conversation  with  a  party  to  the  suit,  is  qualified 
by  the  case  above  cited.  See,  also,  Sturge  v.  .Buclnnum,  10  A. 
&  E.,  598-G05;  1  Taylor's  Ev.,  042;  1  Greenl.  on  Ev.,  §  407; 
Whart.  on  Ev.,  §  572 ;  Whart.  Cr.  ICv.,  §  493,  n.  1. 

This  evidence  of  the  charges  nuule  I)y  S.  S.,  in  the  conversa- 
tion with  Dr.  Bleye,  was  illegal  and  manifcstl}'  prejudiced  the 
defendant  in  maintaining  his  defense  upon  the  merits.  It  was 
corroborating  the  evidence  of  the  principal  witness  on  the  part 
of  the  state,  by  her  own  declarations  made  to  another  in  the 
absence  of  the  defendant,  on  the  main  point  in  the  case,  where 
she  was  the  only  witness.  Her  charge  was  met  by  the  direct 
denial  of  the  defendant,  and  this  evidence  was  forced  in  to 


T 


u 


AJIERICAN  CEBHNAL  EEPORTS. 


give  the  effect  of  a  second  witness  sustaining  her.  ITowcvcr 
reluctant  the  court  may  be  in  setting  aside  the  verdict  of  a  jury- 
in  a  case  like  this,  yet  we  feel  bound  to  say,  as  Lord  Dennian 
once  said  to  counsel  who  put  in  inadmissible  testimony :  "  You 
should  have  taken  care  not  to  put  in  bad  evidence." 

Other  objections  are  not  regaixled  as  having  any  iirportance. 
The  conviction  of  the  defendant  was  under  section  75  of  tlio 
act  for  the  punishment  of  crimes,  and  not  under  section  193, 
relating  to  attempts  to  commit  crimes.  The  judgnient  for 
both  fme  and  imprisonment  was  according  to  the  statute,  and 
legal. 

The  punishment  imposed  by  section  75  is  not  cruel  and  un- 
usual, witliin  the  prohibition  of  the  constitution.  Tlie  penalty 
is  a  fine  not  exceeding  $500  and  imprisonment  at  hard  lalor 
for  a  term  not  less  than  two  years,  where  the  Avoman  or  child 
do  not  die  in  consequence  of  the  malpractice  of  the  defend- 
ant. It  is  a  reasonable  punishment  for  a  heinous  crime,  which 
in  almost  every  case  endangers  the  life  and  health  of  the 
woman,  and  the  destruction  of  the  foetus  or  child,  which  may 
be  quickened  or  instinct  with  the  beginning  of  life.  It  is  not 
cruel  nor  unusual,  but  the  kind  and  degree  of  punishment  im- 
posed for  crimes  which  are  injurious  to  the  persons  of  iiidivid- 
uals.  Fine  or  imprisonment,  or  both,  is  the  usual  form,  while 
for  this  crime,  which  manifests  a  recldess  disregard  of  human 
life,  both  must  be  inflicted.  When  a  proper  case  arises  for  dis- 
cussing what  is  a  cruel  and  unusual  punishment  Avithin  the 
constitutional  inhibition,  the  matter  will  be  examined  further, 
but  this  is  not  such  case. 

For  the  error  of  admitting  illegal  evidence  prejudicial  to  the 
defendant,  the  judgment  avUI  be  reversed,  the  record  remitted 
and  a  new  trial  ordered. 

Note.— In  The  State  v.  Harper,  35  Ohio  St.,  78,  which  was  an  indictment 
for  unlawfully  using  an  instrument  witli  the  intent  of  producing  an  nhor- 
tion,  and  not  for  homicide,  the  court  held  that  the  dying  declarations  of  the 
woman  were  inadmissible  in  evidence  against  the  defendant.  ' '  This,"  says 
this  court,  in  People  V.  Davis,  56  N.  Y.,  103,  "is  the  settled  rule,  and  it  is 
uimecessary  to  discuss  the  reasons  upon  which  it  is  founded."  See,  also, 
lieg.  V.  Hind,  8  Ck)x,  C.  C,  300. 


.' 


COMMONWEALTH  v.  CORKIN. 


15 


Commonwealth  v.  Coktcin. 

(136  Mass.,  429.) 

Abortion:  Indictment  —  Evidence. 

1.  DERcniBixa  the  offense.— An  indictment  which  alleges  that  the  dc- 
fi'iulant  unlawfully  used  an  instrument  with  intent  to  procure  a  miscar- 
ria,';o  of  a  woman  named,  and  whicli  descriliOH  the  instrument  anil  the 
maimer  in  which  the  defendant  used  it,  is  sufficient. 

3.  EviDF.xcE  AS  TO  PRIOR  ACTS. —  Acts  of  the  defendant  at  other  times  may 
he  shown  as  tending  to  prove  the  intent  of  defendant,  and  if  competent 
to  prove  the  crime  chai'ged,  it  is  no  objection  that  it  also  tended  to  prove 
other  crimes. 

JV.  B.  Bryant,  for  the  defendant. 

K  J.  Sherman,  Attorney-General,  for  the  commonwealth. 

W.  Allkx,  J.  The  indictment  must  be  construed  as  alleg- 
ing lliat  the  defendant  unlawfully  used  an  instrument  Avith  in- 
tent to  procure  the  miscarriage  of  a  Avoman  named ;  and  it 
sulliciently  describes  the  instrument,  and  the  manner  in  Avhich 
the  defendant  used  it.  This  is  a  suificient  desci'iption  of  the 
statutory  offense  of  using  an  instrument  AA'ith  intent  to  pro- 
cure the  miscarriage  of  a  AA'oman. 

Tiie  evidence  objected  to  Avas  clearly  competent  for  the  pur- 
pose for  Avhich  it  Avas  admitted.  Whether  it  Avas  of  acts  Avhich 
formed  part  of  the  principal  transaction,  or  of  acts  of  the  de- 
fendant at  other  times,  it  tended  to  prove  attempts  of  the  de- 
fendant to  procure  the  identical  result  the  intent  to  procure 
Avhich  constituted  the  gist  of  the  oifense  charged, —  that  is,  to 
prove  the  intent  Avhich  Avas  charged  in  the  indictment.  Being 
competent  to  prove  the  crime  charged,  it  is  no  objection  that 
it  also  tended  to  prove  other  crimes.  3  Euss.  on  Crimes  (5th 
cd.),  377  ct  seq.;  Commonwealth  v.  Choate,  105  Mjiss.,  451 ;  Com- 
monwenlth  v.  McCarthy,  119  Mass.,  351;  Commonwealth  v. 
Bradford,   12G    Mass.,  42;    Commonwealth   v,  Jackson,   132 

Mass.,  IG. 

Exceptions  overrided. 


li 


16 


AMERICA:    CRIMINAL  REPORTS. 


In  ee  Brosnahan,  Je. 
(4  McCrary,  1.) 

Adulteration:    Federal  jurisdietion  —  Constilutional  laiv  — Habeas  cor- 
pus —  Patent  laws. 

1.  Habeas  corpus  — Power  op  federal  courts— State  criminal  stai  • 

UTE.— Tho  circuit  court  of  the  United  States  may  issue  the  writ  of 
habeas  corpus  upon  the  application  of  any  person  who  is  imprisoned  in 
violation  of  tlie  constitution,  or  of  any  law  or  treaty  of  the  United 
States;  and  if  a  i^rson  be  imprisoned  under  a  state  statute  which  is 
in  conflict  with  either,  that  court  has  power  to  dischaige  him. 

2.  State  statute  held  not  in  violation  of  the  constitution  op  the 

United  States.— Tlie  statute  of  Missouri  providing  for  the  punishment 
by  fine  and  imprisonment  of  any  person  who  shall  manufacture  "out 
of  any  oleaginous  substance  or  any  compounds  of  tho  same,  other  than 
that  produced  from  unadulterated  milk,  or  cream  from  the  same,  any 
article  designed  to  take  the  place  of  butter  or  cheese  produced  from 
pure,  unadulterated  milk,  or  (!ream  of  the  same,"  or  who  sliall  sell  or 
offer  for  sale  the  same  as  an  article  of  food,  is  not  in  violation  of  any 
provision  of  the  constitution  of  the  United  States. 

3.  Patentee  not  protected  against  violation  op  state  laws. —  Tho 

solo  object  and  purpose  of  tho  patent  laws  is  to  give  to  the  inventor  a 
monopoly  of  what  he  has  discovered.  What  is  gianted  to  him  is  the 
exclusive  right,  not  the  abstract  right;  but  the  right  in  him  to  tho 
exclusion  of  everybod}'  else.  lie  is  not  authorized  by  tho  patent  laws 
to  manufacture  and  sell  the  patented  article  in  violation  of  tho  laws  of 
the  state.  His  enjoyment  of  the  right  may  be  modified  by  tho  exigen- 
cies of  the  community  to  which  he  belongs,  and  regulntod  by  laws 
wliich  render  it  subservient  to  the  general  welfare,  if  holu  bubject  to 
state  control. 

4.  Patent— In  what  sense  a  contract.— A  patent  is  a  contract  only  as 

between  tho  parties  to  it,  namely,  the  United  States  on  one  side  and  the 
patentee  on  the  other,  and  the  rights  conferred  thereby  can  extend 
no  further  than  the  right  granted  to  the  patentee  under  tho  patent 
laws. 

5.  Deprivation  of  liberty  or  property— Fourteenth  ajiendiient  to 

the  constitution.— The  statute  above  named  does  not  deprive  any 
person  of  liberty  or  property  without  due  process  of  law,  within  the 
meaning  of  the  fourteenth  amendment  to  the  constitution. 
C.  Habeas  corpus— Jurisdiction.— The  federal  courts  have  no  jurisdic- 
tion to  discharge  a  prisoner  held  under  a  state  statute,  upon  the  ground 
that  such  statute  is  in  violation  of  the  constitution  of  the  state,  or  in 
excess  of  the  powers  which  the  people  of  the  state  have  conferred  tm 
their  legislature.  If  it  does  not  violate  the  federal  constitution,  tho 
question  is  for  the  state  courts. 

On  writ  of  Habeas  Corpus. 


IN  RE  BROSNAHAN,  Jr.  It 

MiLLKR,  Justice.  The  prisoner  in  this  case  is  brought  before 
us  by  virtue  of  a  writ  of  habeas  corpus  issued  under  the  author- 
ity of  this  court,  and  directed  to  John  W.  Rucker,  in  whose 
custody  the  petitioner  stated  liiniself  to  bo.  To  this  writ  Mr. 
Kucker,  at  the  time  of  producing  the  body  of  his  prisoner, 
makes  return  that  he  liokls  him  in  custod}'  by  virtue  of  a  pre- 
cept to  him  directed  as  constable  by  A.  AV.  Alhni,  a  justice  of 
the  peace  of  Jackson  county,  lV[issouri,  and  lie  annexes  a  copy 
of  the  mittimus  as  a  part  of  his  return.  From  this  it  appears 
that  a  criminal  proceeding  had  been  instituted  against  Brosna- 
han  for  a  viohition  of  the  statute  of  ]\Iissouri  concerning  the 
sale  of  oleomargarine,  and  that  on  being  arrested  and  brought 
before  the  justice  of  the  peace,  the  latter  had  set  the  hearing 
or  trial  at  some  future  day,  several  months  off,  and  had  fixed 
a  reasonable  sum  as  bail  for  the  prisonei''s  appearance  at  that 
time.  The  prisoner  refused  to  give  bail,  whereupon  the  magis' 
trate  made  the  order  committing  him  to  custody.  The  present 
writ  of  habeas  corpus  Avas  thereupon  sued  out. 

As  the  courts  of  the  United  States  are  of  limited  jurisdic- 
tion, and,  in  ordinary  cases,  can  have  no  control  of  the  courts 
or  judicial  officers  of  the  states  while  engaged  in  enforcing 
their  criminal  laws,  the  counsel  representing  Eucker  on  behalf 
of  the  state  deny  the  jurisdiction  of  this  court  in  the  case. 

For  the  prisoner  the  jurisdiction  is  asserted  on  the  following 
grounds :  First,  that  the  statute  of  ^Missouri  is  void,  because 
the  article,  oleomargarine,  the  sale  of  which  it  forbids  in 
^lissouri,  is  made  and  sold  under  a  patent  of  the  United  States 
issued  to  Ilyppolyte  ^lege,  December  ;}(),  1ST3,  for  a  new  and 
useful  discovery  under  the  patent  laws  on  that  subject ;  second, 
it  is  void  because  it  impairs  the  obligation  of  the  contract  evi- 
denced by  that  patent ;  third,  it  is  void  because  it  is  a  regula- 
tion of  commerce  among  the  several  states ;  fourth,  because  it 
deprives  a  man  of  his  property  without  due  process  of  law 
(section  1,  article  14,  of  the  Amendments  to  the  Constitution 
of  the  United  States ) ;  Jifth,  because  it  is  without  any  authority 
in  the  constitution  of  the  state  of  Missouri,  and  is  outside  of 
any  legislative  power  whatever. 

The  statute  thus  assailed  is  in  the  folloAving  words : 

"  An  act  to  prevent  the  manufacture  and  sale  of  oleaginous 
Vol.  rv  — a 


^ 


18 


AMERICAN  CRIMINAL  REPORTS. 


substances,  or  compounds  of  the  same,  in  imitation  of  the 

pure  dairy  product. 

"Section  1.  Whoever  manufactures,  out  of  jiny  oUniftijious 
substances,  or  any  compounds  of  the  same,  otiier  than  tiiat 
pro(hiced  from  unadulterated  milk,  or  cream  fi-om  t\w  same, 
any  article  desi<,mod  to  take  the  place  of  i)utter  or  cheese 
produced  from  imre,  unadulterated  milk,  or  cream  of  the  same, 
or  Avhoever  shall  sell  or  offer  for  sale  tiie  s:ime  as  an  article 
of  food,  shall,  on  conviction  thereof,  be  confined  in  the  county 
jail  not  exceeding  one  year,  or  fined  not  exceeding  $1,000,  or 
both."    Approved  Wdrch  24. 1881. 

The  acts  of  congress  concerning  the  writ  of  hnl)caf<  corjnin 
have  been  brought  together  in  chapter  IP.  of  the  Revised 
Statutes,  and  are  included  in  sections  751-700. 

That  Avhich  relates  to  the  jurisdiction  of  the  circuit  courts  is 
found  in  sections  751  and  753: 

"Sec.  751.  The  supreme  court,  and  the  circuit  and  district 
courts,  shall  have  power  to  issue  writs  of  Jmhms  corjintfi" 

"Sec.  753.  The  writ  of  halem  eot'pus  shall  in  no  case  ex- 
tend to  a  prisoner  in  jail,  unless  when  he  is  in  custody  under 
or  by  color  of  the  authority  of  the  United  States,  or  is  com- 
mitted for  trial  before  some  court  thereof,  or  is  in  ci^stody  for 
an  act  done  or  omitted  in  pui-suanco  of  the  law  of  the  United 
States,  or  of  an  order,  process  or  decrce  of  a  cornet  or  judge 
thereof,  or  is  in  eusfofli/  in  vittlntion  of  the  eonxtltHflon,  or  of  a 
law  or  treatij  (f  the  United  States,  or  boiug  a  subject  or  citizen 
of  a  foreign  state,"  etc. 

The  words  italicized  above,  namely,  "  m*  is  in  custody  in  vio- 
lation of  the  coustituti(m,  or  a  law  or  treaty  of  the  United 
States,"  confer  the  only  power  under  which,  in  tliis  case,  juris- 
diction can  be  exercised  by  the  circuit  couit. 

It  is  quite  clear  that  if  the  ^[issouri  statute  is  justly  obnox- 
ious to  either  of  the  four  objections  first  named,  it  is  void,  and 
the  person  held  for  violating  that  statute  is  in  custody  in  vio- 
lation of  the  cimstitution  of  the  United  States;  and  the  power 
and  duty  of  this  court  to  discharge  him  are  unquestionable. 

We  proceed  1o  inquire  if  the  law  is  so  objectionable. 

1.  As  to  the  (jffect  of  the  patent.  The  patent  is  introduced 
in  evidence,  and  proof  is  offered  to  show  tliat  the  ai'ticlc  sold 


IN  RE  BUOSNAHAN,  Jr. 


19 


l>y  tlio  prisoner,  and  for  wliicli  salo  ho  is  i)rosocutc'(l,  is  tlie 
article  specilied  in  Mege's  patent,  an<l  tliat  the  prisoner  has 
siicli  anthority  as  the  |)atent  eonl'ers  to  sell  it.  The  validity  of 
tiie  patent  is  not  disputed,  lias  tiie  i)risoner,  then,  a  righ*^^  to 
sell  the  article  thus  patented,  not\vithstandin<^  the  statute  of 
Missouri  Avhieh  foi'liids  such  sn\v{  The  constitution  (art.  1,  §  8, 
cl.  8j  gives  congress  power  "to  proiriote  Die  progress  of  science 
and  useful  arts  by  securing,  for  u  limited  tinu',  to  authors  and 
inventors,  the  <\tchi.slt'{>  rhjht  to  their  respective  writings  and 
discoveries;"  and  the  act  of  congress  which  is  tlesigned  to  give 
effect  to  this  clause  declares  that  in  every  case  where  a  patent 
is  issued  under  it,  the  patentee  shall  have  the  exdmive  right  to 
inah\  nse  and  sell  Am  subject-matter  of  his  patent,  whatever 
it  may  he. 

It  is  to  be  observed  that  no  constitutional  or  statutory  pro- 
vision of  the  United  States  was,  or  ever  has  been,  necessary 
to  the  right  of  any  person  to  make  an  invention,  discovery  or 
machine,  or  to  use  it  when  made,  oi'  to  sell  it  to  some  one  else. 
Such  right  has  always  existed,  and  would  exist  now  if  all 
patent  laws  /ere  repealed.  It  is  a  right  which  may  be  called 
a  natural  right,  and  which,  so  far  as  it  may  be  regulated  by 
law,  belongs  to  ordinary  municipal  legislation;  and  it  is  un- 
affected by  anything  in  the  constitution  or  patent  laws  of  the 
Tnited  States. 

The  sole  object  and  purpose  of  tlu!  laws  which  constitute  the 
patent  and  copyright  system  is  to  give  to  the  author  and  the 
inventor  a  monopoly  of  what  he  has  writtcMi  or  discovered,  that 
no  one  else  shall  nuike  or  nso  or  si^ll  his  writings  or  his  inven- 
tion without  his  permission;  and  what  is  granted  to  him  is  the 
exclusive  right;  not  the  abstract  right,  but  the  right  in  him  to 
the  exclusion  of  everybody  else. 

For  illustration,  an  author  who  h  ,<1  written  or  in'inted  a 
book  always  had  the  right  to  do  so,  and  to  nuike  and  sell  as 
many  copies  as  he  pleased;  and  he  can  do  this  though  he  takes 
out  no  copyright  for  his  work.  Jhit  if  he  wishes  to  have  the 
benefit  of  the  exclusive  right  to  do  this,  he  can  get  it  by  secur- 
ing a  copyright  under  the  act  of  congress.  All  that  he  ob- 
tains, then,  by  this  copyright,  all  that  he  asks  for  or  needs,  and 
all  it  was  designed  to  confer  on  him,  is  to  make  the  right  which 
ho  had  ah'eady  in  common  with  everybody  else,  an  exclusive 


20 


AMERICAN  CRIMINAL  REPORTS. 


ri^ijlit  in  him  —a  monopoly  in  which  no  one  can  share  without 
his  permission. 

But  let  us  suppose  that  the  book  which  he  has  thus  copy- 
righted is  an  obscene  and  immoral  book,  which  by  the  law  of  the 
state  in  which  it  is  published  may  be  seized  and  destroyed,  and 
for  tliat  reason ;  does  this  statute,  whiclf  forbids  any  one  else 
but  him  to  print  or  publish  it,  autlioi  ly.e  him  to  do  so?    Can  lie 
violate  the  law  because  no  one  else  or  :i  do  it  ?    Does  the  copy- 
right confer  on  him  a  monopoly  of  vice,  and  an  immunity  from 
crime?    Suppose  a  discovery  of  a  cheap  mode  of  producing 
intoxicating  liquor,  in  regard  to  which  tlie  inventor  obtains  a 
patent  for  the  product ;  docs  this  authorize  him  to  defy  tlie  en- 
tire system  of  state  legislation  for  the  suppression  of  the  use 
of  such  drinks  ?    The  answer  is  tliat  the  purposes  of  the  patent 
law  and  of  the  constitutional  provision  are  answered  when  the 
patentee  is  protected  against  competition  in  the  use  of  his  in- 
vention by  others ;  and  Avhen  the  law  prevents  others  from 
infringing  on  his  exclusive  right  to  make,  use  or  sell,  its  object 
is  accom])lished.    This  pro})03ition  is  fully  supported  by  the 
supreme  court  in  the  case  of  Patterson  v.  Kenttichj,  97  U.  S.,  501 . 
That  case  also  cites  with  approval  the  following  language  from 
the  opinion  of  the  supreme  court  of  Ohio  in  the  case  of  Jordan 
V.  Overseers  of  I)a>/t.o)i,  4  Ohio,  295 : 

"  The  sole  operation  of  the  statute  (the  patent  law)  is  to  en- 
able him  I'  ii '  inventor)  to  prevent  others  from  using  the  prod- 
uct of  his  labors,  except  with  his  consent.  But  his  own  right 
of  using  is  not  enlarged  or  affected.  There  remains  in  him,  as 
in  every  otlier  citizen,  the  power  to  manage  his  property  or 
give  direction  to  his  laborers  at  his  ])lcasure,  subject  only  to  the 
paramount  claims  of  society,  which  requires  that  his  enjoyment 
may  be  modified  by  the  exigencies  of  the  community  to  wliicli 
he  belongs,  and  regulated  by  laws  Avhich  render  it  subservient 
to  the  general  welfare,  if  held  subject  to  state  control." 

The  principle  is  reaffirmed  in  WeUcr  v.  Virqinia  103  IT  8 

Mi.  ,  .    ., 

2.  Does  the  Missouri  statute  impair  the  obligation  of  any 
contract?  The  only  one  to  which  we  are  referred  as  aflTectcd 
by  It  is  the  contract  found  in  the  patent  between  the  United 
States  and  the  patentee.  Some  reference  is  made  to  a  contract 
between  the  puUlc  and  the  patentee.    We  know  of  no  such 


lug  an( 
tion,  w 
state  wi 
than  th 
would  I 
by  the  f 
liam,  8 


IN  RE  BROSNAHAN,  Je. 


21 


contract  in  a  case  like  this,  except  such  as  may  be  found  to 
exist  between  the  parties  to  it,  namely,  the  United  States  on 
one  side  and  the  patentee  on  the  other.  If  we  concede  such  a 
contract  to  exist,  it  can  extend  no  further  than  the  right  granted 
to  the  patentee  under  the  patent  laws.  We  have  already 
sliown  tliat  this  is  not  tlie  original  or  absolute  right  to  make, 
to  use  and  to  sell,  whicli  is  a  right  not  dependent  on  the  patent, 
but  the  right  to  l)e  protected  against  the  manufacture,  use  or 
sale  cf  this  product  by  others  without  his  permission.  When 
the  state  of  Alissouri  shall  pass  a  law  that  everybody  may 
manufacture,  use  and  sell  oleomargarine,  it  will  probably  im- 
pair the  obligation  of  the  Mege  patent.  If  it  does  not,  it  will 
certainly  authorize  the  infringement  of  his  right  under  the 
patent,  and  will  be  void  for  that  reason.  It  will  be,  then,  imma- 
terial whether  it  impairs  the  obligation  of  his  contract  or  not. 
3.  We  are  unable  to  see  that  it  is  a  regulation  of  commerce 
among  the  several  states.  If  it  can  be  called  a  regulation  of 
commerce  at  all,  it  is  limited  to  the  internal  conmierce  of  the 
state  of  Missouri.  Being  a  criminal  statute  there  i^  no  pre- 
tense that  it  can  have  any  operation  outside  the  boundary  of 
the  state.  The  person  Avho  manufactures  or  sells  the  article 
outside  of  the  state  is  not  liable  to  the  penalties  of  law.  The 
statute  does  not  forbid  its  importation  or  exportation,  the 
bringing  of  it  into  the  state,  or  carrying  it  out  of  the  state ; 
nor  is  its  use  in  the  state  forbidden  to  those  who  cliooso  to  use 
it  even  for  food.  It  is  only  forbidden  to  manufacture  it  or  to 
sell  it  for  food,  to  take  the  place  of  butter  for  that  purpose. 
For  all  otlier  purposes  it  may  be  made  and  sold  in  the  state, 
and  for  that  purpose,  or  any  other,  it  nuiy.be  imported  or  ex- 
ported without  violating  tlie  laAV.  If  it  could  be  seen  that  the 
law  was  directed  by  way  of  discrimination  against  the  prod- 
uct of  a  sister  state,  while  no  such  prohibition  existed  against 
tlie  same  ])v  )duct  in  Missouri,  or  was  intended  to  prevent  buy- 
ing and  selling  between  the  states,  or  importation  and  exporta- 
tion, whereby  the  citizens  or  the  productions  of  a  neighboring 
state  were  placed  in  a  worse  position  in  regard  to  that  article 
than  the  citizens  or  the  productions  of  JVlissouri,  the  argument 
would  not  be  without  force.  Such  is  the  doctrine  laid  down 
by  the  supreme  court  of  the  United  States  in  Woodruff  v.  Par- 
/lam,  8  Wall,  123;  and  in  Ilimon  v.  £ott,  id.,  148;  and  The 


^ 


22 


AMERICAN  CRIMINAL  REPORTS. 


State  Freight  Tax  Case,  15  Wall,  232;  United  States  v.  Dewitt, 

9AVall,41.  ^      .         . 

4.  We  are  next  to  inquire  whether  the  statute  deprives  the 
owner  of  this  product  of  his  property,  within  the  meaning  of 
the  clause  of  the  fourteenth  amendment  which  says:  "Nor 
shall  any  state  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  law." 

The  statute  does  not,  in  direct  terms,  authorize  the  seiz.ure 
or  taking  of  any  property,  not  even  that  whose  manufacture 
is  forbidden.  The  party  is  not,  in  fact,  deprived  of  this  prop- 
erty by  the  statute,  or  by  any  proceeding  which  it  authorizes. 
The  personal  punishment,  by  fine  and  imprisonment,  which 
the  statute  imposes,  must  be  inflicted  according  to  the  law  of 
Missouri,  Avhich  allows  a  trial  by  jury,  with  all  the  other 
forms  which  from  time  immemorial  have  been  held  to  be  duo 
process  of  law.  The  moneyed  line,  then,  and  the  liberty  of 
Avhich  the  party  may  be  deprived,  are  undoubtedly  imposed  by 
due  process  of  law. 

If  it  be  urged,  as  it  has  in  some  cases,  that  the  offcct  of  the 
statute  upon  tlie  right  to  sell  tlie  property  is  sucli  as  to  destroy 
its  value,  and  therefore  to  deprive  the  owner  of  it,  tliero  are  sev- 
eral answers  to  the  proposition :  First,  the  value  of  tlie  property 
can  hardly  be  so  alfected  that  tlie  party  may  be  said  to  be  de- 
prived of  it,  while  it  can  readily  be  transported  into  some 
other  state,  and  sold  without  restriction;  secondly,  and  conclu- 
sively, that  as  to  the  product  made  or  imported  into  the  states 
after  tlie  passage  of  the  statute,  the  statute  was  and  must  bo 
taken  as  part  of  the  due  process  of  law,  and  deprived  tlie 
party  of  nothing  which  he  owiunl  when  it  was  passed,  or  which 
he  had  a  right  to  make  or  acipiire  for  sale  as  food  at  the  time 
he  did  so  make  or  buy  it.    The  law  in  such  case  did  not  de- 
prive him  of  his  projierty.    If  he  is  injured  in  relation  to  that 
property,  it  is  by  his  own  acti(ni  in  buying  or  making  it,  with 
the  statute  before  his  eyes.    That  statute  was,  as  to  him  and 
to  this  property,  due  [)i'ocoss  of  law,  of  which  he  had  due 
notice.    Bai'temeijer  v.  Sfufe,  18  Wall,  132.     Ilis  injury  or 
loss,  "f  any,  arises  out  of  his  determination  to  defy  the  law, 
and  it  is  by  the  law  and  its  mode  of  enforcement,  which,  ex- 
isting at  the  time,  is  due  process  of  law,  that  he  must  be  tried. 
5.  The  evidence  in  favor  of  the  petitioner  is  abundant,  and 


IN  RE  BROSNAHAN,  Jr. 


23 


of  the  liighcst  character,  to  prove  that  the  article  which  he 
sells,  and  which  he  is  forbidden  to  sell  by  the  statute  of  Mis- 
souri, is  a  wholesome  article  of  food  prepared  from  the  same 
elements  in  the  cow  which  enable  her  to  yield  the  milk  from 
which  butter  is  made,  and  Avhen  made  by  Mege's  process  is  the 
equal  in  quality  for  purposes  of  food  of  the  best  dairy  butter. 
No  evidence  is  offered  by  counsel  for  Rucker  or  for  the  state 
to  contradict  this,  because  they  say  it  is  wholly  immaterial  to 
the  issue  before  the  court.  A  very  able  argument  is  made  by 
counsel,  whoso  abilit}'  commands  our  respect,  to  show  that,  such 
being  the  character  of  the  article  whose  manufacture  and  sale 
is  forbidden  by  the  statute,  the  legislature  of  Missoui'i  exceeded 
its  po\vers  in  i)assing  it.  It  is  not  so  much  urged  that  any- 
thing in  tlie  constitution  of  ^[issouri  forbids  or  limits  its  power 
in  this  respect  by  express  language,  as  that  the  exercise  of  such 
a  power  in  regard  to  a  property  shown  to  be  entirely  innocent, 
incapable  of  any  injurious  results  or  damage  to  public  health 
or  safety,  is  an  unwarranted  invasion  of  public  and  private 
riglits,  an  assumption  of  power  without  authoi-ity  in  the  nature 
of  our  institutionSj  and  an  interference  with  the  natural  rights 
of  t'le  citizen  and  of  tlie  public  which  does  not  come  within 
the  [)rovinco  of  legislation.  The  proposition  has  great  force, 
and,  in  the  absence  of  any  presentation  of  the  matters  and 
circumstances  which  governed  the  legislature  in  enacting  the 
law,  we  should  have  difficulty  in  saying  it  is  unsound.  For- 
tunately, as  tlie  case  before  us  stands,  we  feel  very  clear  that, 
even  if  well  founded,  this  objection  to  the  statute  is  one  which 
we  cannot  consider  in  this  case. 

As  already  stated,  Avlien  a  writ  of  habeas  corpus  is  issued  by 
the  circuit  court  in  behalf  of  one  in  custody  of  a  state  officer, 
under  judicial  ])roceedings  in  state  courts  and  under  state 
laws,  the  only  inquiry  Ave  can  make  is,  whether  he  is  held  in 
"violation  of  the  constitution,  or  of  a  law  of  congress,  or  a 
treaty  of  the  United  States."  The  act  in  question  may  be  in 
conflict  with  the  constitution  of  the  state  Avithout  violating  the 
constitution,  or  any  law  or  treaty  of  the  United  States.  It 
may  be  in  excc^ss  of  the  ])owers  which  the  i)eople  of  Missouri 
have  conferred  on  their  legislative  body,  and  therefcn-e  A'oid, 
without  infringing  any  ])rinciplo  found  in  the  constitution, 
laAvs  or  treaties  of  the  United  States. 


^ 


24 


AMERICAN  CRIMINAL  REPORTS. 


"We  have,  in  the  four  objections  to  this  statute  first  consid- 
ered, examined  all  the  points  in  which  it  is  supposed  to  con- 
flict Avith  the  constitution  and  laws  of  the  United  States,  and 
Ave  know  of  no  others,  and  no  others  have  been  suggested.  The 
jn-oposition  now  under  consideration,  if  well  taken,  is  one  for 
the  consideration  of  the  state  court  when  this  case  comes  to 
trial.  It  is,  in  a  habeas  eoqms  case  in  the  federal  courts,  ex- 
cluded by  the  express  language  of  the  statute  conferring  juris- 
diction in  such  cases.  This  court  does  not  sit  here  clothed  with 
full  and  plenary  powei-s  either  of  common  law  or  of  criminal 
jurisdiction.  Its  criminal  jurisdiction  is  still  more  limited  than 
its  jurisdiction  at  common  law  and  in  chancery.  It  has,  in 
comuion  Avith  the  district  court,  jurisdiction  of  all  offenses 
affainst  the  statutes  of  the  United  States.  Such  is  not  the  case 
before  us. 

Section  753  goes  further,  and  authorizes  the  court  to  issue 
Avrits  of  habeas  corpus  in  all  cases  Avliere  a  ])erson  is  in  custody 
in  A'iolation  of  the  laws  of  the  United  States,  including  its 
constitution  and  its  treaties.  The  prisoner  in  t'lis  case  is  not 
])rosocute(l  for  a  crime  or  offense  against  the  United  States. 
We  have,  therefore,  no  general  jurisdiction  of  the  case. 

We  have  endeavored  to  show  that  Avhile  held  inider  a  law  of 
Missouri  by  Missouri  officials,  it  is  not  in  violation  of,  it  is  not 
forbidden  by,  the  constitution,  or  any  laAV  or  treaty  of  tlie 
United  States;  and  the  act  of  congress,  under  Avhich  alone 
Ave  can  exorcise  the  special  power  of  issuing  Avrits  of  habeas 
corpus,  ])crmit3  us  to  go  no  further. 

The  return  of  the  constable,  Iluokcr,  to  the  Avrit  is  sufficient, 
and  the  prisoner  must  be  remanded  to  his  custody ;  and  it  is  so 
ordered. 

McCkauv,  J.,  concurs. 

Note.— In  The  State  v.  Addington,  77  Mo.,  llO,  the  court  hold  the  act 
prohibiting  the  manufacture  or  sale  of  oleoiuargju-ino  or  any  other  article  in 
imitation  of  butter  or  cheese  constitutional.  Held,  also,  that  the  offer,  on 
the  part  of  the  defendant,  to  show  that  oleomargarine  was  as  Avholcsomo  as 
any  other  article  of  food,  could  not  avail  the  defendant  for  the  purpose  of 
testing  the  constitutionality  of  the  law;  that  the  object  of  the  net  was 
the  prevention  of  facilities  for  selling  or  manufacturing  a  spurious  ai-ticle 
of  butter,  resembling  the  genuina  article  so  closely  in  its  external  appear- 
ance as  to  render  it  easy  to  deceive  purchasers  into  buying  that  which  they 
would  not  buy  but  for  the  deception;  that  the  law  was  salutary  in  its  ol> 


STATE  OF  IOWA  v.  DONOVAN. 


25 


jccts,  and  that  the  legislature  had  a  right  to  pass  it  in  the  exercise  of  tho 
police  power  of  the  state. 

In  Palmer  v.  The  State,  39  Ohio  St.,  236,  the  court  held  that,  for  the  pur- 
jiose  of  promoting  the  public  welfare,  the  legislature  had  the  power  to  pro- 
hibit the  sale  of  substances  having  the  semblance  of  butter  or  cheese,  but 
not  wholly  made  from  pure  cream  or  millc,  unless  each  package  of  such 
substance  should  have  pamted,  stamped  or  marked  thereon,  in  the  maimer 
prescribed  by  the  statute,  the  name  of  every  ai-ticle  used  in,  or  entering  into, 
the  composition  of  such  substance,  and  that  this  power  is  possessed  by  the 
legislature  over  the  sale  of  aiticles  protected  by  letters  patent  as  well  as 
those  not  thus  protected. 


Adultery: 


State  of  Iowa  v.  Donovan. 
(61  Iowa,  278.) 

Institution  of  prosecution  for  —  Admissions - 
character — Prior  acts  of  adultery. 


■Previous  good 


1.  Adultery  EFFECTED  BY  FORCE. —  To  constitute  the  crime  of  adultery  as 
agiiinst  the  man,  the  consent  of  the  woman  to  the  carnal  intercourse  is 
not  indispensable,  but  the  oifense  maj'  exist  as  against  him,  though  the 
connection  was  effected  by  force  and  against  her  will. 

•v'.  Institution  op  prosecution  for,  by  husband  or  wife.—  Under  a  statute 
which  provides  that  no  prosecution  can  be  commenced  but  on  the  com- 
I^laint  of  the  Imsband  or  wife,  appearing  before  the  grand  Jury  as  a  wit- 
ness in  obedience  to  a  subpoena  is  not  a  sufficient  compliance  witli  the 
requirements  of  the  statute  to  authorize  a  conviction  of  the  dctV'ndant; 
but  it  is  not  incumbent  on  the  state  to  establish  the  fact  of  the  insti- 
tution of  the  prosecution  by  the  husband  or  wife  beyond  a  reaaonable 
doubt. 

3.  Admissions. —  It  is  not  erroneous  to  instruct  tlie  jury  that  "  admissions 

made  in  ordinary  or  random  conversations  are  not  generally  considered 
jx  law  as  satisfactory  proof." 

4.  Previous  good  character. —  Previous  good  character  is  not  of  itself  a 

defense,  but  is  a  circumstance  which  should  be  considered  by  the  jury 
in  connection  with  all  the  other  evidence,  and  it  may  be  sullicient  to  turn 
the  scale  in  favor  of  the  accused,  but  its  value  as  defensive  evidence  in 
any  given  case  is  to  be  determined  by  the  jmy. 

5.  Other  acts  op  adultery. —  The  rule  of  law  is  that  where  the  cli.-  :go  is 

of  one  act  of  adultery  only,  in  a  single  count,  to  which  evidence  has 
been  given,  the  prosecution  is  not  permittetl  afterwards  to  introduce 
evidence  of  other  acta  committed  at  different  times  and  places. 

Appeal  from  Mitchell  District  Court. 

The  (lefendiint  was  indictetl  for  the  crime  of  adultery,  was 
tried,  convicted,  ami  sentenced  to  imprisonment  for  two  years. 
He  appeals.    The  material  facts  appear  in  the  opinion. 


25  AMERICAN  CRimNAL  REPORTS. 

Z.  M.  liyce,  for  appellant. 

Smith  McPherson,  Attorney-General,  for  the  state. 

Day,  C.  J.  1.  The  person  with  whom  the  offense  is  alleged  to 
have  been  committed  was  the  sister  of  the  defendant's  wife,  fif- 
teen years  of  age.  SL 13  testi .led  that  the  defendant  accomplished 
the  connection  wit-\  )  e  .'"I'ce  and  against  her  will.  The 
court  instructed  the  ju.  ic  \.ws:  "To  constitute  the  crime 
of  adultery  as  against  the  man,  the  consent  of  the  woman  to 
the  carnal  intercourse  i.  j>ot  indispt'usable,  but  the  offense  nuiy, 
as  against  him,  exist,  though  rhe  c,  .u.ection  was  effected  by 
force  and  against  her  will."  The  giving  'X  tliis  instruction  is 
assigned  as  error.  It  is  fully  in  accord  with  the  rule  established 
in  State  v.  Sanders,  30  Iowa,  582.  We  are  content  with  the 
doctrine  recognized  in  that  case. 

2.  The  court,  after  charging  the  jury  that  no  prosecution  for 
adultery  can  be  commenced  but  on  the  comi)laint  of  the  hus- 
band or  wife,  and  directing  them  as  to  what  acts  on  the  part  of 
the  defendant  would  constitute  such  complaint,  instructed  the 
jury  as  follows :  "  Eut  if  she  appeared  before  the  grand  jury  in 
response  to  a  subpecna,  and  testified  before  them  in  the  case, 
but  not  intending  to  prefer  the  charge  of  adultery  against  the 
defendant,  but  gave  lier  testimony  supiiosing  she  was  required 
to  do  so,  this  would  not  be  a  complaint  by  her  against  her  hus- 
band, within  tin;  meaning  of  the  law." 

It  is  objected  that  this  instruction  is  uncertain  and  mislead- 
ing. It  is  not,  we  think,  vulnerable  to  the  criticism  made.  It 
announces  a  correct  rule,  and  was  really  in  the  interest  of,  and 
beneficial  to,  the  defendant. 

3.  The  a})pellant  complains  of  the  following  instruction: 
"  The  burden  is  on  the  state  to  show  tiiat  the  indictment  was 
found  on  tlie  complaint  of  the  wife,  and  failing  to  do  so  the 
jury  should  acquit."  The  objection  made  to  this  instruction 
is  that  it  does  not  direct  tliat  the  fact  referred  to  must  be 
proved  beyond  a  reasonable  doubt.  In  State  v.  Jlcnh',  58  Iowa, 
457,  it  was  held  that  an  averment  in  an  indictment  that  the 
prosecution  was  commenced  on  tlio  complaint  of  the  wife, 
must  bo  proved  by  the  state.  Such  fact  is  essential  to  the 
conviction  of  the  defendant,  but  it  docs  not  enter  into  or  con- 
stitute any  part  of  the  facts  which  go  to  make  up  the  crime. 


STATE  OF  IOWA  v.  DONOVAN. 


2T 


Whilst,  thei'efore,  the  defendant  cannot  be  convicted  without 
proof  that  the  indictment  was  found  on  complaint  of  tlie  wife, 
we  do  not  think  it  is  incumbent  upon  the  state  to  establish  the 
fact  beyond  reasonable  doubt.  The  thirteenth  instruction 
asked  by  the  defendant  was  correctly  refused,  if  for  no  other 
reason,  because  it  required  the  fact  of  the  wife's  complaint  to 
be  established  beyond  a  reasonable  doubt. 

4.  The  defendant  complains  of  the  instruction  of  the  court 
thai  "  admissions  made  in  ordinary  or  random  conversations 
are  hot  generally  considered  in  law  as  satisfactory  proof." 
JJcfeiulant  insists  that  the  court  should  have  instructed  that 
"ordinarily  such  admissions  are  Aveak  and  unsatisfactory 
])roof."  Wliilst  the  court  might,  without  error,  l»ave  couched 
the  instruction  in  the  language  suggested  by  counsel,  it  was 
not  error  to  employ  the  language  used. 

a.  The  court  instructed  the  jury  as  follows :  "  It  is  compe- 
tent for  a  person  accused  of  crime  to  prove,  as  a  circumstance 
in  his  defense,  tJiat  his  previous  character  as  to  the  trait  in- 
volved in  the  charge  was  good.  Previous  good  character  is 
not  of  itself  a  (U^fense,  but  is  a  circumstance  which  should  be 
considered  by  tlie  jur}'  in  connection  with  all  the  otlier  evi- 
dence, and  it  nuiy  bo  suHicient  to  turn  the  scale  in  his  favor, 
but  its  value  as  defensive  evidence  in  any  given  case  is  to  be 
determined  by  the  jury."  It  is  claimed  that  this  instruction 
docs  not  place  sulKcient  emphasis  upon  proof  of  good  charac- 
ter, and  that  the  court  should  have  given  an  instruction  asked 
by  the  defendant  upon  the  subject.  We  think  the  instruction 
of  the  court  gives  all  the  effect  to  proof  of  good  character 
which  the  authorities  warrant.  See  /State  v.  Wortkrvj),  48  Iowa, 
5S3 ;  State  v.  Horning,  49  id.,  158 ;  State  v.  Gustafson,  50  id., 
194. 

G.  The  defendant  complains  of  the  refusal  of  the  court  to 
instruct  tlie  jury  as  follows :  "  In  this  case  it  is  claimed  by  the 
defense  that  tliere  are  some  circumstances  in  proof  tending  to 
show  that  tl  10  Avas  a  combimition  or  conspiracy  between  the 
wife  of  the  defendant  and  her  mothcu*,  and  the  wife's  sister, 
Kate  Corcoran,  to  fasten  this  crime  upon  the  defendant,  from 
motives  of  malice,  pecuniiiiy  gain,  or  other  motives.  If  you 
Ihul,  from  the  evidence,  such  to  bo  the  fact,  then  it  will  bo  your 


«^ 


28 


AMERICAN  CRIMINAL  REPORTS. 


duty  to  acquit.  Or  if  the  evidence  raises  even  a  reasonable 
doubt  thereon  in  favor  of  the  accused,  you  should  acquit." 
This  instruction  was  properly  refused.  If  the  defendant  com- 
mitted the  crime  with  which  he  was  charged,  it  was  the  duty 
of  the  jury  to  convict  him,  without  any  regard  to  the  motives 
which  led  to  his  prosecution. 

7.  The  delcndaut  assigns  as  error  the  refusal  of  the  court  to 
permit  the  intmcUiction  in  evidence  of  a  letter  written  by  ono 
John  Callagan,  to  the  wife  of  the  defendant,  stating  that  he 
would  ^nve  the  old  lady,  her  mother,  a  span  of  colts  as  soon  as 
he  was  able  to  get  Kate ;  that  he  was  bound  to  have  Kate  any 
Avay.  This  letter  was  wholly  immaterial,  and  it  was  properly 
rejected. 

8.  The  state  introduced  as  a  witness  one  St.  John,  who  testi- 
fied to  certain  conversations  he  had  with  defendant,  in  Avhich 
he  admitted  having  had  intercourse  with  Kate  Corcoran.  Upon 
cross-examination,  he  stated  that  he  couUl  not  give  the  lan- 
guage used  by  defendant,  but  could  testify  only  from  the 
impressions  received  and  the  ideas  formcil  from  the  conversa- 
tions. The  defendant  moved  to  exclude  his  testimony  from 
the  jury.  The  motion  'vas  properly  overruled.  The  testimony 
was  properly  left  to  the  jury,  to  be  given  such  weight  as  they 
might  deem  it  entitled  to  in  view  of  the  facts  elicited  upon  the 
cross-examination. 

9.  The  witness,  Kate  Corcoran,  testified  to  one  act  of  inter- 
course between  herself  and  the  defendant,  m  January,  1882. 
The  court  permitted  her  to  testify  to  another  act  of  intercourse 
occurring  one  week  afterwards.  This  action  of  the  court  is 
assigned  as  error.  The  rule  of  law  is  that  where  the  charge  is 
of  one  act  of  adultery  only,  in  a  single  count,  to  whicli  evidence 
has  been  given,  the  prosecution  is  not  permitted  after\N-ards  to 
introduce  evidence  of  other  acts,  committed  at  different  times 
and  places.  2  Greenl.  Ev.,  §  47,  and  authorities  cited.  The 
abstract  shows,  however,  that,  at  the  close  of  the  argument, 
the  district  attorney  said  he  elected  to  rely  upon  the  transaction 
first  testified  to  by  Kate  Corcoran.  This,  in  effect,  withdrew 
the  evidence  of  the  second  transaction  from  the  jury,  and  cured 
whatever  error  there  may  have  been  in  its  admission. 

10.  It  is  claimed  that  the  evidence  does  not  support  the  vcr- 


STATE  OF  IOWA  v.  DONOVAN.  gf 

diet.    The  evidence  is  not  of  such  a  character  as  to  justify  us 
in  disturbin*^  the  verdict. 
The  judgment  is  affirmed. 

Note. —  In  Granhcrry  v.  State,  61  Miss.,  440,  under  a  st.itute  which  roads: 
"  If  any  man  and  woman  sliall  unlawfully  cohabit,  whctlior  in  adultery  or 
fornication,  they  shall  be  fined  in  any  sum  not  more  than  $500  each  and 
imprisoned  not  more  than  six  months,  at  the  discretion  of  the  court,  and 
it  shall  not  be  necessary  to  constitute  the  offense  that  the  parties  dwell  to- 
gether publicly  as  husband  and  wife,  but  it  may  lie  proved  by  circumstances 
which  show  habitual  sexual  intercourse,"  it  was  held  tliat  it  must  be  shown 
that  the  parties,  whether  dwelling  together  or  not,  habitually  indulged  in 
sexual  intercourse.  The  facts  disclosed  by  the  record  were,  that  the  defend- 
ant was  a  school  teacher,  and  it  was  shown  by  the  testimony  of  the  woman, 
with  wliom  the  offense  was  charged  to  have  been  committed,  that  on  five 
or  six  occasions  during  a  scliolastic  term  of  three  months  she  remained  at 
the  school-room  after  the  other  pupils  had  returned  to  tlieir  homes,  .at  which 
times  and  place,  but  at  no  other,  the  defendant  had  sexual  intercourse  with 
her.  On  the  facts  of  the  c.ise,  admitting  all  tlu;  testimony  proved  and  all  that 
might  be  fairly  inferred  from  it,  the  court  w.as  of  opinion  that  habitual  sex- 
ual intercourse  was  not  proved.  The  coiu't  held,  however,  that  it  was  not 
necessary  that  they  should  dwell  together,  nor  that  they  should  publicly 
avow  the  relationship  which  existed  between  them  —  that  it  would  be  suf- 
ficient to  show  that  condition  or  relationship,  whether  avowed  or  concealed, 
which,  if  pxibliclj'known,  would  lead  men  to  char.ictei'izo  the  woman  as  the 
mistiess  of  the  man.  "  It  i*habitual  concubinage  or  lying  together  wliich 
constitutes  the  cohabitation  meant  by  the  statute." 

Upon  a  motion  to  quash  an  indictment  for  fornication  against  an  unmai'- 
ried  man  who  was  charged  with  having  had  sexual  intercourse  with  a  mar- 
ried woman,  it  was  held  tliat  defendant  could  not  be  convicted  of  fornication, 
but  that  he  might  be  convicted  of  adulteiy.  "  Adultery  is  committed  when- 
ever tliore  is  an  intercoui'se  from  which  spurious  issue  may  arise.  State  v, 
Tai/lor,  58  N.  H.,  331.    See,  also,  The  State  v.  Wilnon,  23  Iowa,  364. 

What  in  sufficient  commencement  of  the  pronecntion  by  the  httsband  or 
wife?  Under  the  Iowa  statute  it  is  provided  that  "no  prosecution  for 
adultery  can  be  commenced  but  on  the  complaint  of  the  husband  or  wife." 
In  The  State  v.  Dingce,  17  Iowa,  232,  it  was  held,  where  a  wife  filed  an  in- 
formation before  a  justice  of  the  pe.'ice,  charging  her  husband  with  the 
crime  of  adultery,  that  the  prosecution  was  commenced  by  the  wife  within 
the  meaning  of  the  statute,  and  that  her  appearance  before  the  grand  jury, 
by  which  an  indictment  was  found  against  him,  was  not  essential  to  the 
validity  of  the  indictment. 

After  the  prosecution  is  commenced  by  the  husband  or  wife,  it  may  be 
continued  without  further  co-operation  on  their  part,  and  even  without 
their  presence  or  consent.  State  v.  Baldy,  17  Iowa,  39.  And  it  is  immate- 
rial whether  the  prosecution  is  commenced  before  the  examining  magistrate 
or  the  grand  jury.  It  is  then  in  the  complete  control  of  the  courts,  and 
further  voluntary  prosecution  by  the  husband  or  wife  is  unnecessary.  State 
r.  Dingce,  17  Iowa,  233. 


«tt 


80 


AMERICAN  CRIMINAL  REPORTS. 


An  avcrraont  in  an  indictment  for  adultery,  tliat  the  prosecution  was  com- 
menced l.v  the  Imsband  or  wife  of  the  defendant,  h  not  conclusive  upon, 
but  m;iy  be  controverted  by,  such  defendant.    The  State  V.  Hath,  17  Ii)wn. 

836.  ,  ,       . 

Marviagr.  after  void  decree  of  divorce.  The  defendant  procured  a  decree 
of  divorce  from  his  wife  and  mm-ried  again.  Upon  proceedings  by  the 
former  wife  the  decree  of  divorce  was  hold  void  for  fraud  and  annulled. 
In  a  criminal  i)ro8ecution.  held  that  the  defendant  was  guilty  of  adultery 
in  cohabiting  with  the  second  wife.  The  decree  of  divorce  being  adjudged 
void,  it  was  so  from  the  beginning,  and  neither  that  nor  the  good  faith  with 
which  it  was  contracted  gave  any  validity  to  the  second  marriage.  The 
State  V.  Whitcomb,  53  Iowa,  85;  State  v.  Goodenow,  05  Me.,  30;  Com.  v.  El- 
well,  2  Met.,  190;  Com.  v.  Mash,  7  id.,  472. 


Taylor  v.  The  State. 

(36  Ark.,  84.) 
Adultery:  Ai^pcal  by  state. 

1,  New  trial.—  A  defendant  acquitted  of  a  misdemeanor  punishable  by  fine 

only  may,  upon  sufficient  grounds,  upon  motion  of  the  state,  be  again 
put  on  trial,  without  any  violation  of  the  constitutional  provision  against 
putting  one  twice  in  jeopardy  of  life  or  lin^J  for  the  same  offense. 

2.  Cohabitation.—  Sexual  intercourse  between  persons  not  maiTied,  though 

living  in  the  same  house,  is  not  sufflcient,  alone,  to  constitute  the  offense 
of  cohabiting  together  as  luisband  and  wife  without  being  married. 

Appeal  from  Mississippi  Circuit  Court.  Hon.  L.  L.  Mack,  cir- 
cuit judge. 

Zyles,  attorney  for  appellant. 

Harkisox,  J.  Dempsey  Taylor  and  Josie  Eogan  were,  at 
the  November  term,  1878,  of  the  circuit  court  of  ^Mississippi 
county,  indicted  for  cohabiting  together  as  husband  and  wife 
without  being  married.  At  the  May  term,  1879,  Taylor  was 
separately  tried  and  was  acquitted  by  the  '}avy.  The  court  set 
aside  tlie  verdict  on  the  ground,  as  the  record  states,  that  it  was 
contrary  to  the  law  and  the  evidence,  and  continued  the  case. 
At  the  jMay  term,  1880,  he  was  again  separately  tried  upon  the 
plea  of  not  guilty,  Avas  found  guilty,  and  his  fine  assessed  at  $20. 

He  moved  for  a  new  trial,  upon  the  ground  that  the  verdict 
was  not  Avarranted  by  the  evidence.  His  motion  was  over- 
ruled, and  he  appealed. 


TAYLOR  V.  THE  STATE. 


81 


■\ 


■'. 


The  cvuloncG  AVas,  substantially,  that  Josie  Ilof^an  lived  in 
Taylor's  family,  in  ^linsissippi  county,  as  a  hireling,  and  did 
the  cooking  lor  the  family,  and  she  had  been  living  there  about 
two  years  when  the  iu(li(!tment  was  found.  She  hiid  five  or 
six  children,  the  ohlest  about  sixteen  and  the  youngest  born 
about  the  time  of  tlio  iinding  of  the  indictment,  all  of  whom 
Taylor  recognized  as  his  chiUh-en,  and  admitted  himself  to  be 
their  father,  and  thoy  called  him  papa.  She  and  her  cliildren 
ate  at  the  same  table  with  him  and  his  wife.  The  house  in 
which  he  lived  was  a  dtmble  house,  having  two  rooms,  with  a 
stack  chimney  between,  but  with  no  inside  door  or  entrance 
from  one  to  the  other. 

Taylor  and  his  Avife  slept  in  one  room,  and  Josie  ]iOgan  and 
her  children  in  the  other.  Tavlors  wife  had  no  children ;  and 
the  witnesses  knew  of  no  unfriendliness  of  his  wife  towards  her. 

It  is  insisted  that  the  court  had  no  authority  to  set  aside  the 
verdict  of  acquittal.  The  statute  provides  that  appeals  may 
be  takei  by  the  state,  as  well  as  by  the  defendant,  in  criminal 
cases,  but  there  civn  l)e  no  reversal  of  the  judgment  in  felonies, 
and  only  when  the  punishment  is  not  imprisonment,  in  misde- 
meanors,    (iantt's  Digest,  sections  21 27,  2129,  21:52,  2U1,  2143. 

And  it  was  held,  in  the  case  of  Jones  v.  The  State,  15  Ark., 
201,  that  where  a  defendant  indicted  for  a  misdemeanor,  pun- 
ishable by  fine  only,  has  been  tried  and  acquitted,  and,  on  ap- 
l)eal  or  writ  of  error  to  this  court,  the  judgnient  is  reversed, 
and  the  cause  remanded,  he  may  be  tried  again,  without  any 
violation  of  the  constitutional  provision,  that  no  person  shall, 
for  the  same  otfense,  be  twice  put  in  jeopardy  of  life  or  limb. 

If,  notwithstanding  a  verdict  of  acquittal,  a  new  trial  may, 
after  a  reversal  of  judgment  in  this  court,  be  had,  we  can  see 
no  gootl  reason,  nor  any  reason  whatever,  why  the  circuit  court 
niay  not  correct  the  error,  by  setting  aside  the  verdict  and 
granting  a  new  trial,  and  so  avoid  the  occasion  for  an  appeal. 

A  new  trial  must  be  applied  for  in  the  court  below,  or  there 
can  be  no  reversal  for  errors  occurring  at  the  time,  and  if  it 
should  be  granted,  there  can  be  no  reason  for  an  appeal. 

There  was  no  evidence  that  the  appellant  and  Josie  Bogan 
claimed  to  be  husband  and  wife,  or  that  they  sustained  to  each 
other  a  relation  in  the  house  like  that  of  husband  and  Avife. 
lie  had  a  wife  living  with  hinj  in  the  house,  with  whom  he  slept. 


A 


33  AaiERICAN  CRIMINAL  REPORTS. 

Josio  Bogan  and  her  chlldion  slept  in  anotlior  room,  and  notli- 
ing,  so  far  as  the  testimony  goes,  was  ever  seen,  in  his  and  lier 
demeanor  and  conduct  towards  each  otlier,  of  an  improper  or 
immoral  nature.  Sexual  intercourse  between  ]>orsons  not  nnii-- 
ried,  though  living  in  the  same  house,  is  not  sutHcicnt  to  con- 
stitute the'^offcnse  of  cohabiting  together  as  husband  and  wife, 
without  b-^ing  married. 

The  verdict,  we  think,  was  without  evidence  to  sustain  it. 
The  judgment  is,  therefore,  rov(>rsed,  and  tlie  cause  remanded. 

Note.— A'o  opjical  or  itrit  of  nror  on  behalf  of  the  stntc.  It  sooins  to  be 
well  Kottleil  .at  the  present  time,  in  tliis  country  and  in  En,'(liuul,  tlmt  an 
apiieal  or  writ  of  error  will  not  lie  in  l)eii;ilf  of  the  state,  except  where  it  is 
given  hy  statute,  and  tlion  only  when  the  defendant  has  not  been  tried  an<l 
ac(iuitted. 

This  ipiestion  came  before  the  court  of  aj^iieals  of  New  York  in  1848  in  the 
case  of  The  People  r.  Corning,  2  N.  Y.,  1.  Bronson,  J.,  after  reviewing  the 
cases  on  the  subject,  says:  "The  weight  of  authority  seems  to  be  against 
the  right  of  the  gcncrr  ment  to  bring  error  in  a  criminal  case.  The  absence 
of  any  precedent  for  it,  either  here  or  in  England,  until  within  a  very  recent 
period,  fully  countorb,alanees,  if  it  docs  not  outweigh,  the  fact  that  the  right 
hiis  lately  been  exercised,  in  a  few  instances,  without  objection.  And  in 
three  of  the  four  states  where  the  question  has  been  made,  the  courts  liavt> 
decided  that  the  right  does  not  exist. 

In  Com.  V.  Cummings,  3  Cush.,  212,  decided  in  1849,  Shfiw,  C.  J.,  in  an 
elaborate  and  learned  opinion,  denies  the  right  of  the  commonwealth  to 
prosecute  a  writ  of  error  in  a  criminal  case. 

In  State  v.  Lane,  78  N.  C,  547,  the  court  holds  that  no  appeal  can  be 
taken  by  the  sttite  to  any  court  from  the  .action  of  an  inferior  court  in  sus- 
taining a  plea  of  former  acquittal,  although  such  plea  is  a  mixed  question  of 
law  and  fact,  and  that  the  court  erred  in  not  leaving  the  question  to  the  jurj-. 
The  only  gi-ounds  of  appeal  recognized  in  that  state  are  :  1.  Wliere  judgment 
has  been  given  for  the  defendant  upon  a  special  verdict;  and  2.  Where  a  like 
judgment  has  been  given  upon  a  demurrer  to  an  indictment,  or  upon  a 
motion  to  quash.  Since  the  decision  in  Coming'' s  Caw,  2  N.  Y.,  supra,  an 
act  has  been  passed  in  that  state,  providing  that  writs  of  eiTor  to  review  any 
judgment  in  favor  of  any  defendant,  upon  any  indictment  for  any  criminal 
offense,  except  when  such  defendant  shall  have  been  acquitted  by  a  jury, 
may  be  brought  in  behalf  of  the  people,  etc.  Similar  statutes  exist  in  many 
of  the  states. 

This  question  came  before  the  Queen's  Bench  Division  in  1881  {Reg.  r. 
Duncan,  14  Cox,  C.  C,  571).  Lord  Coleridge,  C.  J.,  says:  "  With  one  single 
exception,  no  new  trial  has  ever  been  granted,  as  far  as  we  can  find,  when 
a  defendant  has  been  at  his  first  tri.al  in  peril  of  imprisonment.  The  single 
exception  is  Reg.  v.  Scaife,  17  Q.  B.  Div.,  238,  which  was  a  case  for  felony; 
but  not,  I  think,  on  that  accouui,  of  any  greater  or  less  weight  as  an  au- 
thority here.  .  .  .  Tliis  case,  however,  was  considered  at  great  length  in 
Reg.  V.  Bertrand,  L.  Rep.,  1  P.  C,  520,  an  appeal  in  a  case  of  felony  from 


New  Soutl 
the  ]>rivy  < 
Iwiieh  deei 
I'pon  ex 
writ  of  err 
a  court  of 
foumled  uj 
land  iK'fon 
one  shall  Ix 
certainly  a: 
country. 


The  burden 
undertii 
lation  t< 
entitled 
the  alib 

Error  t( 

Pr'doJta 
B.A. 

Okt.v,  J 
and  enteri 
from,  y 
itentiarj^ 
meat  stole 
the  door  o 
get  the  wl 
door.  ViW 
store-hous^ 
prove  the 
fense  char 
showinar  t 
break  an 
be  that  tl 
the  store-1 
Voi 


WALTERS  V.  THE  STATE. 


89 


New  South  Walos;  and  Sir  John  ColoriilKo,  who  (Iclivered  thfl  jiulgmont  of 
the  inivy  council.  expresMKl  <lisai)iirnvul  and  rc^n'et  in  rt'Hi)oct  of  tlio  (juoen's 
ImuiIi  decision  in  wliich  he  had  takt-n  part,  and  lU-elint'd  to  follow  it." 

Upon  exaniinntion  of  the  ca.scs  in  tluH  country  holding  that  an  appeal  or 
writ  of  error  will  lie  in  any  ease  when  tlip  defendant  has  Ixjen  a<'(iuitted  in 
a  court  of  coni|ietent  juriHdiction,  it  will  aj)jM'ar  (ivident  that  they  are 
founded  ui)on  a  mistaken  construction  of  the  practicxj  jw  it  jn-evailed  in  Eng- 
lanil  iH'foH!  Ijonl  llale's  time.  It  is  a  rule  of  the  connnon  law  that  no 
one  shidl  be  lirought  twice  in  jeoi)ardy  for  one  and  the  sanie  offense,  and 
certainly  such  a  rule  should  he  enforced  with  peculiar  eniphaaia  in  this 
country. 


"Walters  v.  Thk  State. 

(30  Ohio  St.,  215.) 

Alibi:  Burden  of  jwoof. 

The  burden  of  proof  is  not  changed  in  a  criminal  case,  when  the  defendant 
undertakes  to  prove  an  alibi,  and  if,  by  n'ason  of  the  «'vidence  in  re- 
lation to  such  alibi,  the  jury  should  doubt  tli(!  defendant's  guilt,  he  is 
entitled  to  an  accpiittal,  although  the  jury  may  not  Ikj  able  to  sjiy  that 
the  alUn  is  fully  proved. 

Error  to  tlio  Court  of  Common  Picas  of  llicliliind  County. 

Pritchard  (6  Wolfe,,  for  plaintilf  in  error. 

B.  A.  lIolIhujHioorth,  Attorncy-G(!noriil,  for  the  state. 


1.  The  indictment  cliar^^es  burfrlary  in  breaking 


Okey,  J 

and  entering  a  barn  in  the  night  season,  and  stealing  there- 
from. Verdict  guilty,  and  senteiu;e  imprisonment  in  the  pen- 
itentiary, under  Eevised  Statutes,  ^  (is;};").  The  wheat  and 
meat  stolen  were  in  a  store-house,  and  the  evi<lence  shows  that 
the  door  of  such  store-house  was  locked,  and  that  in  order  to 
get  the  wheat  and  meat  it  was  necessary  to  break  open  such 
door.  But  it  was  wholly  immatei'ial  whether  the  door  of  the 
store-house  Avas  open  or  fastened.  There  was  evidence  to 
prove  the  breaking  and  entering  the  l)ai'n,  which  was  the  of- 
fense charged,  and  the  crime  was  not  (lis})i'oved  by  evidence 
showing  that  in  order  to  complete  the  theft  it  was  necessary  to 
break  and  enter  the  store-house.  We  understand  the  proof  to 
be  that  the  store-house  was  within  the  barn,  and  the  door  of 
the  store-house  coukl  not  be  reached  except  by  first  passing 
Vol.  IV  — 3 


34 


AMERICAN  CEimNAL  REPORTS. 


into  the  barn.  In  other  words,  that  the  store-liouse  was  merely 
part  of  the  barn.  But  if  it  was  not  necessary,  in  order  to  reacli 
the  door  of  the  store-house,  to  pass  into  the  barn,  the  result  wouhl 
be  the  same,  for  "  wlien,  on  the  trial  of  an  indictment,  there 
appeai-s  to  be  any  variance  between  tlie  statement  in  such  indict- 
ment and  the  evidence  offered  in  proof  tliereof,  ...  in  the 
name  or  descri[)tion  of  any  matter  or  thing-  tlierein  named  or 
<lescriljed,  sucli  variance  shall  not  be  deemed  ground  for  an 
acquittal  of  the  defendant,  unless  the  court  before  Avliich  the 
trial  is  had  find  that  such  variance  is  material  to  the  merits  of 
the  case  or  may  be  prejudicial  to  tlie  defendant."  E.  S.,  §  7210. 
Under  the  circumstances  appearing  by  tliis  record,  tlie  alleged 
variance  could  not,  in  any  view,  be  matei'ial  or  prejudicial. 

2.  Evidence  was  given  tending  to  sliow  that  the  defendant 
committed  tlie  alleged  burglary  and  larceny  on  the  night  of 
May  5, 1882.  The  defendant  offered  evidence  tending  to  prove 
an  aVihi  The  court  charged  the  jury,  among  other  things,  as 
follows:  "Ihider  the  plea  of  not  guilty,  the  defendant  Wal- 
ters interposes  the  claim  and  defense  that  at  the  very  time  of 
the  alleged  commission  of  the  crime  ho  was  elsewhere;  that 
is,  that  he  was  at  that  identical  time  either  in  the  city  of  Mans- 
field or  in  the  village  of  Ashland,  or  in  a  railroad  car  journey- 
ing between  the  two  places;  so  that,  being  elsewhere,  it  was 
physically  impossible  for  him  to  be  coniinitting  crime  at  the 
same  time  at  Ealliet's  barn.  This  defense,  in  hiAV,  is  called 
alibi.  The  defendant  need  not  make  out  his  defense  of  alihi 
by  convincing  you  beyond  reasonable  doubt.  If  be  established 
this  defense  of  aVtJn  by  a  preponderance  of  evidence,  that  is 
enough  —  you  must  acrpiit  him.  A  preponderance  of  evidence 
for  the  al'ihi  will  be  when  it  outweighs  what  the  state  has  pro- 
duced to  the  contrary,  jmd  all  the  evidence  to  the  contrary. 
The  credibility  of  the  aUhl  is  gri^atly  strengthened  if  it  bo  set 
up  at  the  moment  of  first  accusation,  and  if  it  be  consistently 
maintained  throughout  subsequent  proceedings;  otherwise  its 
weight  is  lessened."    To  which  charge  the  defendant  excepted. 

"We  hold  this  charge  to  be  erroneous.  It  is,  in  effect,  that 
evidence  tending  to  show  such  alibi  is  not  to  be  considered  in 
favor  of  the  defendant  unless  it  outweighs  all  the  evidence  in 
opposition  to  it.  We  think  it  was  the  duty  of  the  judge  to 
have  said  to  the  jury  that  they  must  consider  all  the  evidence 


in  the  cj 
from  th( 
able  doi 
which  h 
^\•hen  tl 
reasoii  o 
doubt  til 
tal,  alth( 
was  full; 


Note.— 
the  oiitire 
tiiid  if,  up 
not  rcmovi 
sufli(;ioiit  1 
considcrocl 
whether  a 
It  is,  there 
rant  a  cow 
souglit  to  6 
strong  as 
truth  of  tl 

To  estal) 
fied  of  its 
derates.    ,1 

Alibi  is 
niert!  fact  f 
lore,  denui 
40.    It  is  \ 
devolves  u 
lished  bef( 
case  again! 
evidence  1- 
unrelial)le. 
cause  setti 
establish  t 
Iowa,  5110; 
The  hun 
State  V.  Mi 


WALTERS  V.  THE  STATE. 


i 


3 


; 


in  the  case,  including  that  relating  to  the  alihi,  and  determine 
from  the  whole  evidence  whether  it  was  shown  beyond  reason- 
able doubt  that  the  defendant  had  committed  the  crime  with 
wiiicli  he  was  charged.  The  burden  of  proof  was  not  changed 
when  tlie  defendant  undertook  to  prove  an  aNM,  and  if,  by 
rcasoii  of  the  evidence  in  relation  to  sucli  alibi,  the  jury  should 
doubt  the  defendant's  guilt,  he  would  be  entitled  to  an  acquit- 
tal, although  the  jury  might  not  be  able  to  say  that  the  alihi 
was  fully  proved.  Tola'  v.  State,  IG  Ohio  St.,  583;  1  Bish.  Cr. 
Fro.,  §§  10G1-10G8;  AVhart.  Cr.  Ev.,  §  333. 

Judgment  reversed. 

Note. —  Ordinarily  the  defendant  in  a  criminal  case  is  entitled  to  have 
the  entire  case  left  to  the  jury,  upon  the  evidence  introduced  by  both  sides, 
and  if,  upon  consideration  of  all  the  evidence,  every  reasonable  doubt  is 
not  removed,  he  should  te  ac(iuitted.  If  the  defendant  submits  proof  in- 
sufli(  i(Mit  to  establish  an  nlihi,  as  such,  still  the  jnoof  submitted  may  be 
considered  by  the  jurj' in  connection  with  tiie  other  evidence  in  deciding, 
wlictlicr  a  reasonable  doubt  as  to  the  guilt  of  the  accused  luus  been  raised. 
It  is,  therefore,  error  to  chai'ge  that,  if  the  evidence  was  suflicient  to  war- 
rant a  conviction,  irrespective  of  tiie  question  of  tilibi,  and  if  the  defendant 
sought  to  set  up  an  alibi,  the  evidence  to  suftport  such  defense  should  be  so 
strong  as  to  convince  tlie  jurors' minds  beyond  a  reasonable  doubt  of  the 
truth  of  the  alibi.    LamliH  r.  The  State,  70  C5a.,  051. 

To  establish  an  alibi  it  is  not  necessary  that  the  jury  should  be  fully  satis- 
fied of  its  truth.  But  the  evidence  of  an  alibi  canot  avail  utdess  it  prepon- 
derates.   <S7tt^e  V.  lived,  02  Iowa,  40;  State  i'.  IlamiUon,  57  Iowa,  S98. 

Alibi  is  not  a  defense  within  any  acciu'ate  meaning  of  the  word,  but  a 
mere  fact  shown  in  rebuttal  of  tlie  state's  evidence;  and  it  does  not,  there- 
fore, demand  a  specific  instruc  tion  from  the  court.  State  v,  Eecd,  02  Iowa, 
40.  It  is  well  settled  that  the  ouuh  of  proving  an  alibi  in  a  criminal  case 
devolves  upon  the  accuscil,  and  it  must  be  clearly  and  satisfactorily  estab- 
lished before  it  can  avail,  where  the  evidence  otherwise  makes  out  a  clear 
case  against  him.  This  defense  cannot  be  made  out  in  a  case  where  the 
evidence  to  show  the  same  is,  in  many  important  particulars,  conflicting  or 
uineliable.  Garvitu  v.  The  reoi)le.  107  111.,  103.  A  defendant  in  a  crinnnal 
cause  setting  up  as  a  defense  alibi  or  insanity  has  the  burden  of  proof  to 
establisli  this  defense.  State  v,  Ilemriek,  03  Iowa,  414;  State  v.  Bruce,  48 
Iowa,  5;iO;  ,S7rf/c  v.  Hamilton,  57  Iowa,  51)0. 

Tlie  burden  of  jiroving  matter  of  mitigation  rests  upon  the  defendant. 
State  V.  Mazoii,  00  N.  C,  076. 


A 


? 


IlSS 


B6 


AMERICAN  CRIMINAL  REPORTS. 


Fleetwood  r.  The  Cosimonwealth. 

(80  Ky.,  1.) 

Arrest:  Killing  officer— Murder— Mnmlanghtcr. 

Killing  OF  OFFICER— Want  of  knowledge  op  his  official  character 
REDUCES  crime  TO  MANSLAUGHTER.— A  poaco  officer  lias  the  right  to 
arrest  one  who  is  committing  a  breach  of  tlie  peace  in  his  presence,  au'l 
to  use  such  force  as  is  necessary  to  make  it;  and  if  the  person  so  dis- 
turbing the  iieace  knows  that  the  person  attempting  the  arrest  is  an 
officer,  and  kills  him,  it  is  murder;  if  he  does  not  know  the  fact,  it  iy 
manslaughter. 

W.  C.  p.  Breckinridge,  for  appellant. 
P.  W.  Hardin,,  Attorney-General,  for  appellee. 

Judge  IIiNEs  delivered  the  opinion  of  the  court. 

Appellant  was  indicted  for  the  murder  of  IMefford,  tried, 
convicted,  and  sentenced  to  the  penitentiary  for  life. 

Appellant  was  at  a  public  gathering,  with  a  pistol  in  his 
hand,  disturbing  the  peace  by  cursing,  loud  talking,  and 
threatening  to  shoot  a  certain  person,  when  JMefTord,  a  con- 
stable, attempted  to  arrest  him,  and  being  resisted,  was,  by 
appellant,  shot  and  instantly  killed. 

A  peace  officer  has  the  right,  and  it  is  his  duty,  to  arrest  one 
who  is  committing  a  breach  of  the  peace  in  his  presence,  and 
to  use  such  force  as  may  be  necessary  to  effect  the  arrest ;  and 
if  the  person  disturbing  the  peace  resists  arrest,  and  in  so  doing 
kills  the  officer,  he  is  guilty  of  murder,  if  he  knew  that  th(> 
person  attempting  to  make  the  arrest  was  an  officer;  and  guilty 
of  manslaughter,  if  he  did  not  know  it.  The  law  of  self- 
defense,  as  api)licablo  to  rencounters  between  private  persons, 
does  not  apply,  unless  the  person  resisting  the  jirrest  has 
reasonable  grounds  to  believe,  and  does  believe,  that  the  officer 
is  not  acting  in  good  faith  in  the  attempt  to  arrest,  but  is  using 
his  official  [josition  to  gratify  pei-sonal  feeling  against  the  person 
sought  to  be  arrested,  and  that  by  submitting  to  arrest  and  to 
being  disarmed  he  will,  by  reason  of  tliis  fact,  be  in  danger  of 
great  bodily  harm  or  of  losing  his  life.  Tlie  officer  being  in 
the  riglit,  and  in  the  discharge  of  his  duty,  the  person  resisting 
arrest  does  it  at  his  peril,  and  if  ho  kill,  ho  is  guilty  of  murder 
or  manslaughter,  as  it  nniy  appear  that  he  know  or  did  not 


FLEETWOOD  v.  THE  COMMONWEALTH. 


37 


IcnoAV  the  character  in  which  the  officer  was  acting.    This  view 

of  the  law  was  presented  to  tne  jury  more  fully  and  with  more 

clearness  than  in  any  case  that  has  come  under  our  observation. 

The  accused  has  no  ground  of  complaint  that  the  law  was  not 

properly  expounded,  or  that  the  whole  law  was  not  given. 

Mochihce  V.  Commonwealth,  78  Kentucky ;  Earl's  Pleas  of  the 

Crown,  vol.  1,  p.  302. 

Judgment  affirmed. 


Note. —  An  officer  has  no  riglit  to  arrest  without  process  for  a  past  misde- 
meanor. In  Pow  V.  Bcckncr  et  al.,  3  Ind.,  475,  the  court  held  that  a  statute 
wliich  makes  it  the  duty  of  peace  officers  to  suppress  all  riots,  disorders,  dis- 
turbances and  breaches  ot  the  peace,  and  with  or  without  pi'ocess  to  appre- 
hend all  disorderly  persons  or  disturbers  of  the  peace,  and  convey  them  before 
a  magistrate,  etc.,  does  not  authorize  such  otHcei*s  to  aiTcst  tlie  offenders 
without  process,  for  a  breach  of  the  peace,  after  the  offense  has  been  com- 
iiiitted  and  the  disturbance  has  cei\sed. 

To  justify  an  ofiicer  in  making  an  arrest  for  a  past  offense,  whether  it  be  a 
misdemeanor  or  felony,  he  can  dispense  with  a  waiTant  only  when  he  has 
grounds  of  reasonable  suspicion,  such  as  would  justify  him  at  common  hiw 
in  arresting  for  a  past  felony,     llic  State  v.  Grant,  76  Mo.,  230. 

Altliough  a  warrant  has  been  issued  to  apprehend  a  person  for  an  oflfensc! 
Ii'ss  than  felony,  and  placed  in  the  hands  of  the  officer,  unless  lie  has  it  in 
his  possession  wlicn  he  undertakes  to  make  the  arrest,  tlie  i)risoner  would 
not  be  guilty  of  an  assault,  nor  of  resisting  an  officer  in  the  discharge  of  his 
duty,  as  the  ollicer  in  making  the  arrest  without  tlie  wiurant  in  his  ])osses- 
sion  would  not  be  in  the  execution  of  his  office.  Cudd  r.  Cube.  1  Ex.  Div., 
353;  The  State  v.  ImvcU,  23  Iowa,  304. 

In  Codd  V.  Cabe,  Draiuwell,  B.,  says:  "I  have  always  held  t  to  be  clear 
law  that  a  person  not  charged  with  felony  shall  have  the  oiiportunity  of 
seeing  the  warrant  when  ho  is  taken  into  custody;  and  I  should  have  arrived 
at  the  conclusion  that  the  present  ajipellant  is  entitled  to  jvdginent.  even 
althtnigh  there  had  been  no  authority  in  his  favor.  We  liave  <'onsulted 
some  of  the  other  judges,  and  they  agree  with  us  that  the  decision  of  the 
justic.i's  cannot  be  ui)lield  although  tlie  appellant  displayed  gi'eat  violence. 
Yet  it  is  not  expressly  found  by  the  justices  that  he  used  more  for<'e  tlian 
was  necessary  to  prevent  his  apprehension,  wliich  was  unlawful;  and,  there- 
fore, as  tlie  ciise  stands,  he  has  not  been  guilty  in  law  of  even  a  common 
assault."  See,  also,  Oalliard  v.  La.vton,  3  B.  &  S.,  3(53;  Hogg  v.  Ward,  3  H. 
&  N.,  417. 

Wiiere  a  police  officer  aiTested  a  man  without  a  warrant,  wlio  was  guilty 
of  no  ollVnse,  and,  in  preventing  an  escape,  struck  and  Idlled  the  i»risoner,  it 
was  iield  that  these  facts  would  at  least  warrant  a  verdict  for  involuntary 
manshuighter  in  the  commission  of  an  unlawful  act.  O'Contior  r.  The  State, 
(54  Oa.,  125. 


38 


AMERICAN  CRIMINAL  REPORTS. 


State  v.  Hannett. 
(54  Vt.,  83.) 

Arson:    Evidenc —Stenographer  —  Arguments  to  he  confined  to  the  evi- 
dence. 

1.  To  BURN  one's  own  HOUSE  %VHEN  RIGHTFULLY  IN  POSSESSION,  NOT  ARSON. 

Our  statute  has  not  changed  the  definition  of  the  crime  of  arson  as  given 
by  the  common  laAV  —  tlie  wilful  and  maheious  burning  of  the  dwelling- 
liouse  of  anotlier;  hence,  when  one  burns  tlie  dwelhng-liouso  that  he  is 
lawfully  occupying,  in  legal  sense,  it  is  not  arson;  for  arson  is  a  crime 
against  the  security  of  the  dweUing-house  as  such,  and  not  as  property. 

2.  Motive  may  be  shown.—  To  prove  that  the  respondent  had  a  motive  for 

burning  the  building  evidence  was  admissible  to  show  liis  ill-feeling 
and  its  intensity  towai-ds  his  wife,  who  had  an  interest  in  it;  but  not  the 
cause,  merits  and  consequences  of  the  quarrel;  hence,  it  was  error  to 
admit  proof  that  the  wife  had  procured  a  divorce  for  intolerable  severity ; 
that  the  respondent  had  been  restrained  by  injunction  from  inflicting 
personal  abuse  upon  her;  and  that,  subsequently,  the  marriage  was 
annulled  on  the  giound  of  bigamy. 

3.  Error  to  read  record  of  divorce. —  It  was  error  to  read  in  the  hearing 

of  the  jury  the  record  of  the  court  in  the  divorce  proceedings  to  estal)- 
lish  the  competency  of  the  wife  as  a  witness,  it  being  a  question  solely 
for  the  court  to  determine. 

4.  On  cross-examination  ill-treatment  op  wife  cannot  be  shown.—  It 

was  error  to  allow  the  state's  attorney  to  go  into  an  inquiry,  against  an 
exception,  on  the  cross-examination  of  the  respondent,  as  to  whether  ho 
had  been  complained  of  and  fined  by  a  town  grand  juror  for  ill-treat- 
ment of  his  wife. 

5.  Admissibility  op  stenoqrapher's  notes.— To  contradict  the  respondent 

by  proving  that  he  had  testified  differently  on  the  former  trial  under 
the  same  indictment,  the  admissibility  of  the  stenographer's  notes  of  his 
cross-examination  depended  on  their  relevancy;  if  relevant,  admissihliv, 
otherwise,  not;  hence,  it  was  the  duty  of  counsel  to  have  selected  those 
passages  contradictory  to  his  last  evidence. 

6.  Same —•  Stenographer  should  be  sworn.— A  stenographer,  although  a 

sworn  ofllcer  of  the  court,  when  he  reads  his  notes  of  the  testimony  of  a 
former  trial,  ad  evidence,  must  be  sworn  like  any  other  witness;  but  if 
not,  if  known  to  the  oiiixjsite  counsel,  the  objection  should  Ikj  raised  in 
season,  so  that  the  over.siglit  may  be  coiTected. 

7.  Counsel  must  confine  their  arguments  to  the  evidence.— Counsel,  in 

their  arguments  to  tlie  jury,  are  bound  to  keep  within  the  limits  of  fair 
and  temperate  discussion  of  the  evidence  in  the  case.  Any  violation  of 
this  rule  entitles  the  adverse  party  to  an  exception. 

Indictment  for  burning  a  dwelling-house,  Caledonia  county, 
Ross,  J.,  presiding. 

The  facts  are  sutRciently  stated  in  the  opinion,  except  the 


STATE  V.  HANNETT. 


39 


following:  At  the  close  of  the  charge  to  the  jury,  the  respond- 
ent's couns6l  claimed  that  the  court  had  not  reviewed  his  evi- 
dence and  claims  as  fully  as  it  had  those  of  the  state,  and 
requested  the  court  to  do  so ;  but  the  court  declined  to  modify 
its  charge. 
The  opinion  of  the  court  was  delivered  by 

PowEES,  J.  The  respondent  was  indicted  and  tried  for  the 
crime  of  arson  in  burning  a  dwelling-house  of  Joseph  M.  Ste- 
vens, executor  of  Francis  Oliver. 

The  exceptions  state  that  the  fire  occurred  January  10,  1880, 
and  that  the  respondent  was  then  living  in  the  house,  and  had 
the  right  to  occupy  the  same  until  April  1,  1880. 

These  facts  appearing  on  the  trial,  the  res])ondent  requested 
the  court  to  rule  and  hold  that  the  i-espondent  could  not  be 
convicted  of  the  crime  of  arson;  but  the  court  ruled  other- 
wise. At  the  common  law,  arson  was  de  lined  to  be  the  wilful 
and  malicious  burning  of  the  dwelling-house  of  another.  Our 
statute  has  left  the  delinition  of  the  crime  as  it  stood  at  com- 
mon law.  The  oU'enso  is  a  crime  against  the  security  of  a 
dwelling-house  as  such,  and  not  against  the  building  as  prop- 
erty. In  cases  Avhere  the  ownership  is  in  one,  and  the  occu- 
pancy in  another,  the  indictment  properly  avers  that  the 
dwelling-house  belongs  to  the  latter. 

If  the  occupant  is  in  i)ossession  rightfully  and  burns  the 
house,  he  cannot,  in  legal  sense,  be  guilty  of  burning  the 
dwelling-house  of  another  —  he  burns  his  own  dwelling-house. 

The  authorities  supporting  this  proposition  are  too  numerous 
to  be  cited.    They  are  collected  in  the  text-books. 

In  order  to  show  a  motive  for  the  respondent  to  burn  the 
house,  evidence  was  offered  tending  to  show  ill-feeling  between 
the  respondent  and  his  wife  Mary,  and  threats  of  the  respond- 
ent that  he  would  "  lay  everything  low,"  rather  than  permit 
Mary's  brother  to  occupy  the  house.  No  question  is  niade  as 
to  the  right  of  the  state  to  show  these  facts.  Mr.  Hathaway, 
a  witness  for  tiie  state,  was  permitted,  against  the  respondent's 
exception,  to  testify  that,  in  1870,  he  brouglit  a  petition  for  a 
divorce  in  behalf  of  said  IMary  against  the  respondent,  based 
upon  the  ground  of  the  respondent's  intolerable  severity;  that 
in  1879  he  brought  a  ])etition  to  annul  the  said  Mary's  mar- 


40 


AMERICAN  CRIMINAL  REPORTS. 


riage  with  the  respondent,  on  the  gi'ound  that  the  respondent 
had  another  wife  living  at  the  time  of  such  marriage;  that  the 
respondent  was  restrained  from  inflicting  personal  abuse  upon 
said  Mary  by  injunction;  and  that  in  June,  188(>,  the  marriage 
was  annulled.  This  testimony  we  think  went  further  than  ^he 
rule  allows.  Any  evidence  tending  to  show  a  family  cpuirrel, 
or  a  state  of  hostile  feeling,  between  the  respondent  and  his  wife, 
Avho  would  be  a  loser  by  the  burning  of  the  house,  is  within 
the  rule.  But  the  merits  of  that  quarrel  cannot  be  investigated. 
The  independent  fact  of  a  hostile  feeling  and  its  intensity  may 
be  shown.  The  cause,  the  merits,  and  the  consequences  of  it, 
cannot  be  shown. 

The  evidence  in  question  Avas  well  calculated  to  inflame  the 
minds  of  the  jury  against  the  respondent,  by  showing  him 
guilty  of  other  ofl"enses  than  the  one  on  trial. 

In  order  to  establish  tlie  competency  of  the  said  Mary  as  a 
witness,  the  state  produced  and  read  aloud  in  the  hearing  of 
the  jury  the  record  of  the  court  in  the  divorce  j)roceedings, 
showing  that  a  petition  was  hied  aiul  decree  obtained  as  testi- 
fied to  by  Mr.  Hathaway.  It  is  apparent  that  the  jury  had 
nothing  to  do  with  this  record.  It  was  ollered  to  the  court 
that  the  court  might  determine  upon  inspection  whether  the 
marriage  relation  had  been  dissolved  and  thus  the  witness 
made  competent.  AVe  can  inuigine  no  reason  for  reading  it  in 
the  presence  of  the  jury  except  a  desire  upon  the  part  of  coun- 
sel to  prejudice  the  minds  of  the  jury  by  proof  that  the  court, 
in  the  divorce  proceeding,  had  found  the  charges  testified  to 
by  IlatluiAvay  to  bo  true.  AVhile  it  may  bo  doubtful  whether 
this  was  such  error  as  Avould  sustain  an  exception,  still  in  the 
evident  view  in  which  it  was  offered  by  counsel,  wo  think,  in 
a  criminal  ease,  that  such  practice  is  unwarrantable  and  tends 
to  break  down  tiie  safeguards  which  the  law  throws  around 
persons  on  trial  for  crime. 

On  cross-examination  of  the  respondent,  the  state's  attorney 
Avas  permitted,  against  exception,  to  go  into  an  inipiiry  to  show- 
that  the  respondent  Avas  complained  of  by  the  grand  juror  of 
Walden,  for  ill-treatment  of  his  Avife,  and,  being  ])rosecuted 
therefor,  Avas  fined.  This  evidence  is  of  the  same  character  as 
that  of  Mr.  HathaAvay  above  referred  to,  and  like  that  Avaa 
inadmissible. 


STATE  v.  HANNETT. 


41 


To  contradict  the  evidence  of  the  respondent,  the  stenog- 
rapher was  called  to  the  stand,  and  asked  to  read  his  notes 
of  tlie  respondent's  testimony  in  cross-examination  on  a  former 
trial  under  this  same  indictment.  The  respondent  insisted  that 
only  such  parts  of  the  former  testimony,  as  related  to  subjects 
u]ion  Avhich  the  respondent  had  testified  to  on  the  present  trial, 
should  be  read  by  the  stenographer,  but  the  court  ordered  the 
fitcnograi)her  to  read  the  whole  cross-examination  of  the  re- 
s[)on(lont  on  the  former  trial.  Much  of  tlie  foriucr  cross- 
examination  was  irrelevant  to  the  case;  much  of  it  foreign 
to  any  inquiries  addressed  to  the  respondent  on  tliis  trial ;  and 
much  of  it  calculated  to  prejudice  the  respondent's  case.  For 
the  purpose  of  contradicting  the  respondent's  testimony  on  the 
])rescnt  trial,  it  was  the  duty  of  counsel  to  select  such  passages 
iu  the  notes  of  his  former  testimony  as  were  claimed  to  be  in 
conflict  with  his  present  stoiy.  It  was  error  to  go  further. 
He  could  not  be  contradicted  upon  immaterial  issues,  any  more, 
by  ])i'oof  of  his  declarations  in  court  respecting  them,  than  by 
liis  (loclarations  out  of  court.  If  the  objection  that  the  ste- 
nographer had  not  been  sworn  as  a  witness  had  been  sooner 
raised,  it  would  have  been  sound.  But  the  case  shows  that  the 
rosjiondcnt's  counsel  knew  while  he  was  reading  liis  notes  that 
he  had  not  been  sworn  as  a  witness,  and  made  no  t)bjection 
till  the  argument  had  commenced.  The  objection  Avas  then 
raised,  and  the  court  ruled  that,  as  he  was  a  sworn  officer  of 
court,  it  was  unnecessary  that  he  should  be  swoi"n  as  a  witness. 
Xo  exception  was  taken  to  this  ruling.  If  counsel  had  persisted 
in  their  objection  the  court  might  have  deemed  it  }>roper  to 
stop  the  argument  and  correct  the  oversight.  It  is  clear  that 
any  sworn  officer  of  court,  whether  it  be  the  reporter,  clerk, 
sheriff,  attorney  or  other  officer,  when  he  takes  the  witness 
stand  as  a  witness  must  take  the  oath  of  a  witness,  lie  is 
then  not  discharging  his  official  duties ;  his  oath  of  office  is  no 
protection  to  the  party  against  perjury.  The  reporter  reads 
his  notes  of  a  former  trial  as  an  attorney  Avould  read  his ;  in 
either  event  their  authenticity  and  correctness  should  be  at- 
tested by  his  oath. 

It  is  argued  that  counsel  for  the  prosecution  ovei*stepped  the 
limits  of  legitimate  argumentation  in  his  comments  upon  the 
facts  testified  to  by  Mr.  Hathaway.  The  fact  that  counsel  com- 
mented vigorously  upon  the  offenses  of  the  respondent  referred 


42 


AMERICAN  CRIMINAL  REPORTS. 


to  by  Mr.  Hathaway  illustrates  the  purpose  of  counsel  in 
oifering  the  evidence.  It  is  difficult  to  see  why  counsel  may 
not  comment  upon  any  evidence  in  the  case.  If  the  evidence 
is  not  fit  to  be  talked  about,  it  is  not  fit  to  be  admitted.  But 
no  exception  was  taken  to  the  argument  of  counsel. 

Counsel  in  their  arguments  to  the  jury  are  bound  to  keep 
within  the  limits  of  fair  and  temperate  discussion.  The  range 
of  that  discussion  is  circumscribed  by  the  evidence  in  the  case ; 
any  violation  of  this  rule  entitles  the  adverse  party  to  an  ex- 
ception which  is  as  potent  to  uj^set  a  verdict  as  any  other  error 
committed  during  the  trial.  We  think  the  charge  of  the  court 
did  not  fully  answer  the  respondent's  request  to  have  his  claims 
explained  and  reviewed  as  fully  as  those  of  the  state  had  been. 
This  request  was  one  the  respondent  had  the  right  to  make, 
and,  in  a  criminal  case,  especially,  was  one  that  should  be  fairly 
answered. 

The  sentence  is  vacated,  the  judgment  is  reversed,  and  the 
case  remanded  for  a  new  trial. 

Note.— In  Tlie  State  v.  liases,  78  Mo.,  307,  it  was  urged  that  tho  indict- 
ment was  bad  because  it  alleged  the  ownersliip  of  the  property  in  the 
defendant.  And  in  aiiswei-ing  the  objection  thus  urged  tho  court  says: 
"  The  indictment  is  not  bad  for  charging  the  ownership  of  the  house  in  the 
defendant.  It  distinctly  charges  that  the  house  at  tho  time  was  occupied  by 
certain  families  named,  human  beings,  other  than  the  defendant.  The 
statute  denounces  the  act  of  burning  'any  dwelling-house,  in  which  there 
shall  be  at  the  time  some  human  being.'  It  was  not  even  necessary  to  name 
the  person  occupying  the  iiouse.    State  v.  Aguila,  14  Mo.,  130." 


charge. 


State  v.  Downs. 

(59  N.  H.,  320.) 

Arson:  Indictment — "  Adjoining,"  etc. 

Variance -"Adjoining,"  "adjacent  to,"  etc.- An  indictment  charging 
that  the  respondent  attempted  to  set  fire  to  an  out-building,  adjoining  a 
dwelling-house,  is  not  supported  by  evidence  that  tho  building  was 
near  to,  but  not  in  contact  with,  the  dwelling-house. 

Cogswell  di  Stone,  for  tho  i-espondent. 
Bogersy  solicitor,  for  the  state. 

Stanley,  J.    The  motion  for  the  discharge  of  tho  respond- 
ent should  have  been  granted.    There  was  a  variance  between 


Theo] 

Levy, 
for  the  ( 


i 


THE  STATE  v.  FULFORD. 


43 


the  indictment  and  the  proof.  The  out-building  did  not  ad- 
join tlie  dwelling-house.  "  Adjoining  "  is  a  synonym  for  "  ad- 
jacent to,"  "  contiguous."  It  was  not  adjacent  to  or  contiguous ; 
that  is,  in  contact  with  the  house.  ArJcell  v.  Lis.  Co.,  GO  N. 
Y.,  192 ;  Rex  v.  Ilodrjes,  1  Moo.  &  M.,  341 ;  Pemrelly  v.  Peo- 
2>le,  3  Park.,  59 ;  2  Kuss.  Cr.,  557,  561. 

The  statute  upon  which  this  indictment  was  found  specifies 
three  distinct  offenses,  although  the  punisliment  is  the  same  in 
all  of  them.  Tlioy  are  —  first,  burning  a  dwelling-liouse ;  sec- 
ond, burning  any  out-building  adjoining  a  dwelling-house; 
third,  burning  any  building  whereby  a  dwelling-house  shall  be 
burned.  The  Avords  an  out-building  adjoining  a  dwelling- 
house  are  words  of  description,  and  must  be  proved.  A  con- 
viction under  this  indictment,  upon  the  ovidenco  received, 
would  be  no  bar  to  an  indictment  for  attempting  to  set  fire  to 
an  out-buildiiig  whereby  a  dwelling-house  might  be  burned, 
and  tlie  evidence  received  in  this  case  would  support  such  a 


charge. 


Judgment  arrested. 


BiNouAM,  J.,  did  not  sit ;  the  others  concurred. 


The  State  v.  Fulfoed.  ' 

(33  La.  Ann.,  679.) 
Arson:  Practice — Deposition. 

1,  Copy  of  indictment  and  list  of  jurors  have  to  be  served  on  the  accused 

two  days  before  trial,  but  not  before  arraignment.    Previous  decisions 
affirmed. 

2.  The  granting  of  a  continuance  is  within  the  legal  discretion  of  the  court 

a  quo,  with  which  this  court  will  not  interfere  without  manifest  cause. 
!i.  So  of  the  refusing  of  a  new  trial  to  tho  accused. 

4.  Arson  at  common  law  and  in  this  state. 

5.  Accused  is,  under  no  law,  entitled  to  a  commission  to  take  the  testimony 

of  witnesses  residing  in  another  state. 

The  opinion  of  the  court  was  delivered  by 

Levy,  J.    The  accused,  William  M.  Fulford,  was  indicted 
for  the  crime  of  arson,  tried,  convicted,  and  sentenced  to  im- 


44 


AMERICAN  CRDIINAL  REPORTS. 


prisonment  at  hard  labor  in  the  state  penitentiary  for  the 
period  of  ten  years.  From  this  sentence  and  judgment  he  has 
apiiealcd.  The  record  presents  an  array  of  multitudinous  ob- 
jections and  bills  of  exception,  all  of  which  are  elab.H-ately, 
ably  and  ingeniously  argued  by  counsel  of  accused,  in  their 
brief,  which,  while  coiunumding  admiration  for  the  zeal,  in- 
genuity and  ability  displayed,  fail  to  convince  us  that  there 
fs  such  error  to  the  prejudice  of  their  client  as  would  justify 
us  in  setting  aside  the  verdict  and  revei-sing  the  judgment 
appealed  from. 

We  shall  pass  upon  the  bills  of  exception  in  the  order  in 
which  they  were  taken. 

1st.  As  to  failure  to  serve  copy  of  indictment  and  list  of 
jury  two  days  before  arraignment.  The  law  does  not  require 
this  serWce  to  be  made  two  days  before  arraignment.  It  is 
required  to  be  made  two  days  before  trial,  and  this  appears 
from  the  record  to  have  been  done.  State  v.  Kane,  32  Ann., 
999 ;  7  Ann.,  507. 

2d.  As  to  fixing  the  case  for  trial  before  passing  upon  the 
application  for  change  of  venue.  The  reasons  stated  by  the 
court  sliow  to  our  satisfaction  that  this  action  of  the  court  did 
not  operate  to  the  injury  of  the  accused,  it  being  stated  at  the 
time  that  the  fixing  for  trial  was  without  prejudice  to  the 
rights  of  accused  to  file  his  application  for  change  of  venue  or 
any  other  pleadings  desired  by  him. 

3d.  As  to  overruhng  the  motion  for  change  of  venue,  and 
application  for  a  commission  to  take  the  testimony  of  Avitncsses 
under  commission,  there  was  no  evidence  introduced  by  the 
defense  on  the  motion  for  change  of  venue,  there  being  thus  a 
virtual  abandonment,  and  the  want  of  diligence  and  manifest 
intention  to  delay  the  trial,  which  are  given  as  his  reasons  for 
refusal  by  the  judge  a  quo,  justified  that  refusal. 

4th.  As  to  the  denial  of  the  continuance.  The  court  a  quo, 
in  the  exercise  of  sound  discretion,  refused  the  continuance. 
We  will  not  interfere  with  this  ruling,  made  in  virtue  of  the 
discretion  with  which  the  court  Avas  vested,  and  the  reasons 
for  the  ruling  fully  justify  the  action  taken. 

5th,  6th,  7th.  The  question  propounded  by  the  district  attor- 
ney, relative  to  the  arrest  of  the  Avitness  Russell,  Avas  proper  as 
being  in  rebuttal  of  the  attempt  on  the  part  of  the  defense  to 


THE  STATE  v.  FULFORD. 


45 


show  that  said  witness  was  actuated  by  malice  in  making  the 
affidavit  against  accused. 

8th.  There  was  not  suificient  reason  to  sustain  the  objection 
to  the  question  of  the  district  attorney  to  the  witness  Sherrard. 
The  preface  of  the  question  did  not  cause  the  question  itself  to 
assume  the  character  of  an  objectionable  or  leading  one. 

9th.  This  exception  has  no  merit.  It  was  relevant  to  the 
offense  charged,  and  notwithstanding  the  lapse  of  time  between 
the  conversation  of  witness  and  accused,  and  the  burning,  was 
competent  to  show  a  pre-existing  intent  and  malicious  design 
in  connection  with  the  offense  with  which  accused  is  charged. 

10th.  This  exception  is  also  witliout  merit.  It  was  compe- 
tent for  the  state  to  ask  the  Avitness  Kussell  why  ho  made  the 
affidavit  for  the  arrest  of  tlie  prisoner,  in  rebuttal  of  the  at- 
tempt of  the  defense  to  show  that  witness  was  actuated  by 
malice  therein. 

11th.  The  question  propounded  to  the  witness  Jones  in  re- 
gard to  conversation  and  remarks  made  b\'  one  ^lurphy  was 
properly  overruled,  as  tending  to  introduce  hearsay  and  elicit- 
ing the  moi'e  opinion  of  witness  as  to  the  motives  of  another 
person. 

12th.  The  reasons  given  by  the  district  judge  for  sustaining 
the  objection  of  the  district  attorney  to  the  question  propounded 
to  the  Avitness  Kussell,  viz.,  that  a  suificient  basis  had  not  been 
laid  for  tlie  impeachment  of  the  testimony  of  said  witness, 
who  had  stated  he  could  not  give  the  substance  of  his  conver- 
sation witli  one  Burroughs,  justified  the  judge  in  his  ruling. 

13th.  Tlio  special  charge  asked  for  by  prisoner's  counsel 
has  been  substantially  given  by  the  judge  in  his  written  charge 
to  the  jury,  to  the  effect  tliat  where  the  defense  seeks  to  prove 
an  aJihJ,  tiio  rule  in  regard  to  a  reasonable  doubt  in  regard 
thereto  is  applicable  alike  to  such  proof  as  to  that  introduced 
by  the  state. 

14th.  The  reasons  of  the  judge,  as  given  in  this  bill,  for  his 
ruling,  are  conclusive.  In  his  written  charge  he  had  sub- 
stantially charged  as  desired  in  the  request  for  the  special 
charge. 

15th.  The  court  correctly  charged  in  regard  to  weight  or 
consideration  to  be  given  to  the  law  of  the  case  as  charged  by 
the  judge,  and  the  charge  in  that  connection  is  fidly  sustained 


m 


46 


AMERICAN  CRIfflNAL  REPORTS. 


by  the  decision  of  the  supreme  court  in  the  case  of  State  v. 
Johnston,  30  Ann.,  904. 

loth.  The  special  charge  asked  for  and  referred  to  in  this 
bill  had  been  substantially  given  in  the  written  charge. 

17th.  The  same  reasons  apply  to  this  as  to  the  preceding 
bill  (IGth). 

18th.  So,  also,  as  to  this  bill. 

10th.  The  judge  a  quo,  in  overruling  the  motion  for  a  new 
trial,  exercised  the  discretionary  power  with  which  he  is  in- 
vested, and  his  reasons  embodied  in  this  bill  convince  us  that 
no  grounds  exist  to  justify  us  in  setting  aside  liis  ruling  on  the 
motion. 

The  motion  in  arrest  of  judgment  was  urged  on  these 
grounds : 

1st.  That  the  offense  charged  is  not  arson,  and  therefore  is 
prescribed  by  one  year. 

The  crime  of  arson  is  not  denounced  by  the  statutes  of  this 
state,  eo  nomine.  The  definition  of  this  crime  at  common  law- 
is,  "  the  wilful  and  malicious  burning  the  house  of  another." 
Both  in  England  and  in  this  country,  by  statutory  enact- 
ments, this  offense  has  been  enlarged  and  comprises  several 
grades  and  descriptions,  just  as  the  offense  of  homicide  con- 
tains distinctive  grades.  In  this  state  we  consider  that,  under 
the  generic  term  of  arson,  are  included  the  offenses  prescribed 
in  sections  S-ll,  842  and  84.3,  each  of  Avhich  is  but  one  class  of 
arson,  and  to  Avhich  different  measures  of  punishment  are  at- 
tached. The  commission  of  any  one  of  the  distinctive  offenses 
enumerated  in  these  sections  constitutes  the  crime  of  arson. 
Section  980  excludes,  among  other  offenses,  that  of  arson  from 
the  prescription  of  one  year,  which  is  applicable  to  all  others 
than  those  specially  excepted  in  this  section. 

2d.  That  the  bill  of  indictment  is  invalid  because  "  it  is  not 
indorsed  by  the  foreman  of  the  grand  jury  in  his  official  capac- 
ity, but  is  simply  indoi-sed  John  AV.  Jones,  foreman."  This 
indorsement  was  sufficient.  This  question  w^as  decided  in  the 
case  of  State  v.  Folke,  2  Ann.,  744.  See,  also,  12  Ann.,  382, 
743. 

3d.  That  the  bill  of  indictment  does  not  allege  who  was  in 
possession  of  or  had  control  of  the  building  alleged  to  have 
been  burned,  and  does  not  state  what  kind  of  incorporation 


i 


>w 


case  1 


exercise( 
trict;  th 


THE  STATE  v.  FULFORD. 


4T 


the  parish  of  Jackson  is,  how  or  by  whom  it  was  represented, 
or  is  now  represented.  The  allegations  in  the  bill  iis  to  the 
ownership  of  the  property,  its  character  and  dcscrii)tion,  are 
sufficient.  The  parish  of  Jackson  is  a  political  corporation 
created  by  the  state,  the  existence  and  "kind"  of  which  is 
defined  by  law  and  presumed  to  be  fully  known. 

-Ith.  That  the  bill  does  not  show  that  the  ^I'and  jury  had  been 
charged.  AVe  do  not  think  that  the  ouiission  in  the  bill  itself 
of  the  statement  that  the  grand  jury  ha<l  heen  sworn  is  fatal. 
The  minutes  of  the  coui't,  as  copied  in  the  record,  explicitly  set 
forth  that  the  grand  jury  had  been  "duly  impaneled,  sworn 
and  charged." 

In  the  assignment  of  errors,  in  addition  to  the  objections 
contained  inth  •ineteen  bills  of  exception  hereinbefore  passed 
uj)on,  the  following  are  urged : 

That  "the  record  shows  that  a  foreman  of  tlio  grand  jury 
was  selected,  l)ut  does  not  sliow  that  he  was  sworn."  We  think 
the  entry  on  the  minutes,  which  sets  forth  the  siHection  of  the 
forcnuin  and  the  drawing  of  tlic;  other  graml  jurors,  and  that 
they  were  duly  iiajjaneled,  sworn  and  chai'ged,  imnustakably 
shows  that  the  Avhole  grand  jury  was  sworn,  and  the  bill  of 
indictment  itself  alleges  that  the  grand  jury  of  which  the  fore 
man  was  a  mcm])er  had  been  "  <luly  sworn." 

It  i'  ;i.-<si^  '  as  I  rror  that  the  judge  a  */ito  r«>fused  to  issue 
«  'TV    issions  to  take  the  testimony  of  cei'liiiu  witnesses,  on 

.lalf  of  defen  int,  residing  in  the  state  of  J^lississippi.  In  the 
brief  of  counsi  i  the  decision  in  thetase  of  iSfafe  v.  JFovnsby,  8 
Jt.,  551.  is  relied  upon  in  support  of  his  application.  In  that 
case  ii  was  held:  "  That,  the  courts  of  criminal  jurisdiction  not 
being  vested  with  power  1  yond  a  certain  prescribed  and  de- 
fined limit,  compulsory  prociess  cannot  issue  beyond  said  limit; 
that  the  accused  has  an  undoubted  right,  imder  the  constitu- 
tion, to  have  his  witnesses  heard,  whether  they  bo  found  within 
or  beyond  said  limits;  that  the  provision  of  the  constitution 
allowing  the  accused  to  be  confronted  with  the  witnesses  against 
him  is  a  personal  privilege  which  he  may  waive ;  that  being 
entitled  to  a  sj>eedy  trial  and  to  conipulsory  ]>rocess  to  enforce 
the  attendance  of  his  witnesses,  this  latter  I'ight  can  only  be 
exercised  when  the  witness  resides  or  is  found  within  the  dis- 
trict; that  the  legislature  having  failed  to  provide  means  to 


48 


AMERICAN  CRIMINAL  REPORTS. 


coerce  the  personal  attendance  of  the  witnesses,  it  follows  as  a 
necessary  corollary,  that  recourse  must  be  had  to  the  ordinary 
and  only  remaining  method  of  procuring  testimony,  viz.,  by 


commission." 

Tliis  clearly  had  reference  to  the  testimony  of  vritncsses  re- 
siding within  the  state  and  beyond  the  jurisdictional  limits  of 
the  court  before  which  the  trial  was  had.  It  is  l)!iscd  upon  the 
reason  that,  under  the  constitution  then  existing,  the  accused 
then,  as  now,  liad  the  right  to  compulsory  process  to  enforce 
the  attendance  of  his  witnesses,  and  then  the  legislature  hav- 
ing failed  to  pass  proper  law  s  to  carry  out  the  provision  of  the 
constitution,  the  court,  ex projv'h  wo^a,  recognized,  for  the  rea- 
sons given  in  the  opinion,  the  right  to  issue  commissions  to 
take  the  depositions  of  witnesses  Avithin  the  state,  but  beyond 
reach  therein  of  its  process.  This  right  was  recognized  in  view 
of  the  absence  of  means  to  enforce  compulsorily  the  attend- 
ance of  such  witnesses.  The  state  can  only  ju-ovide  for  com- 
pulsory process  within  its  own  limits  and  jurisdiction.  She  is 
powerless  to  execute,  or  to  cause  to  be  executed,  sucli  process  in 
a  foreign  country,  or  even  in  another  state.  Under  the  laws 
in  force  on  the  trial  of  this  case,  compulsory  process,  in  certain 
criminal  cases,  of  which  this  is  one,  may  be  executed  throughout 
the  state,  and  under  the  decision  cited  and  the  reasoning  tlierein 
depositions  of  witnesses  absent,  but  within  the  state,  would  not 
be  admissible.  Any  constitutional  or  legislative  provisions, 
enforcing  the  attendance  of  witnesses  outside  of  the  state 
by  comymlsory  process,  to  be  executed  outside  of  the  state, 
would  be  in  vain  and  inoperative,  and  we  tliink  with  the  dis- 
trict judge  that  there  is  no  law  authorizing  the  issuance  of  the 
commission  applied  for,  or  the  admissibility  of  evidence  taken 
thereunder.  No  such  right  exists  under  statutory  law.  and, 
we  think,  cannot  be  derived  from  common  law.  In  Alabama 
it  has  been  held  that  "  at  common  law  a  commission  to  take 
the  deposition  of  a  non-resident  Avitness  cannot  issue  at  the 
instance  of  the  defendant  in  a  criminal  case."  Ex  parte  Ilas- 
l-lns,  6  Ala.,  63. 

We  do  not  think  there  was  error  in  the  verdict,  sentence 
and  judgment  of  the  lower  court. 

The  judgment  of  the  lower  court  is,  therefore,  affirmed,  with 
costs. 


DOWLEN  V.  THE  STATE. 


49 


i 


DowLEN  V.  The  State. 

(14  Texas  Ct  App.,  CI.) 

Assault:  Teacher  upon  a  pupil. 

1.  AaORAVATED  ASSAULT  —  EVIDENCE.— The  prosccution  for  aggravated 

assault  wa.g  based  upon  a  chastisement  inflicted  by  an  adult  school 
teacher  upon  an  infant  pupil.  The  prosecution  was  permitted,  over  the 
objection  of  the  defense,  to  prove  that  the  pupil,  two  or  tlu-ee  nights 
after  the  chastisement,  told  his  father  that  he  could  not  sleep,  because 
Ills  hips  were  so  sore  it  pained  him  to  turn  in  bed.  Held,  that  this  dec- 
laration was  made  too  long  after  the  injury  to  be  admissible  in  evidence. 

2.  Same.— Rules  regulating  the  admissibility  in  evidence  of  the  declara- 

tions of  an  injured  party  respecting  his  injuries,  stated  and  discussed. 

3.  Same. —  See  the  statement  of  the  case  for  special  instructions  requested 

wliich,  embodying  correctly  the  law  applicable  to  the  facts,  were  im- 
properly refused  in  the  trial  of  a  teacher  for  chastising  liis  pupil. 

Appeal  from  the  County  Court  of  Collin.  Tried  below  be- 
fore the  Hon.  T.  C.  Gooclner,  County  Judge. 

J.  A.  L.  Wolfe  and  Garnctt  c&  Mxise,  for  the  appellant. 
J.  11,  Burts,  assistant  attorney-general,  for  the  state. 

"White,  Presiding  Judge.  This  prosecution  was  by  an  in- 
formation which  charged  appellant  with  an  aggravated  assault, 
he  being  an  adult  male,  committed  upon  the  person  of  one  D. 
II.  Wisdom,  a  child.  Appellant  was  a  school  teacher  and  D. 
11.  AVisdom  one  of  his  pupils ;  and  it  appears  by  the  evidence 
that  the  castigation  was  inflicted  on  account  of  a  violation  of 
the  rules  of  the  school  by  the  i)upil. 

By  the  first  bill  of  exceptions  it  is  shown  that  the  prosecu- 
tion was  allowed  to  prove,  over  objections,  that,  two  or  three 
nights  after  the  whipping,  the  injured  party  told  his  father 
that  he  could  not  rest  or  sleep  because  his  hips  were  so  sore 
that  it  hurt  him  to  turn  over  in  bed.  This  evidence  was  inadmis- 
sible, because  the  statements  Avere  made  too  long  after  the  in- 
fliction of  the  injury.  Mr.  Wharton  has  discussed  this  subject 
in  one  of  his  standard  works.  lie  says :  "  The  character  of  an 
injury  may  be  explained  by  exclamations  of  pain  and  terror 
at  the  time  the  injury  is  received,  and  by  declarations  as  to  its 
cause.  AVhen,  also,  the  nature  of  a  party's  sickness  or  hm*t  is 
in  litigation,  his  instinctive  declarations  to  his  physician  or 
other  attendant  during  such  sickness  may  bo  received.  Imme- 
VoL.  IV  — 4 


i 


PQ  AMERICAN  CRDHNAL  REPORTS. 

diate  groans  and  gestures  are,  in  like  manner,  admissible.  But 
declarations  made  after  convalescence,  or  when  there  lias  been 
an  opportunity  to  think  over  the  matter  in  reference  to  pro- 
jected litigation,  are  inadmissible.  .  .  .  Bnt  where  such 
subsequent  declarations  are  part  of  the  case,  on  which  the 
opinion  of  the  physician  as  an  expert  is  based,  tliey  have  been 
received."  AVhart.  Crim.  Ev.  (8th  ed.),  sec.  271.  Xot  coming 
witliin  any  of  the  exceptions  pointed  out,  it  was  error  in  the 
court  to  admit  the  testimony. 

Comi)laint  is  made,  in  the  second  bill  of  exceptions,  of  the 
charges  given  by  the  court  at  the  request  of  the  county  attor- 
ney,°in  the  following  terms,  viz.:  "1.  Whon  an  injury  is 
caiiscHl  by  violence  to  the  person,  the  intent  to  injure  is  pre- 
sumed, and  it  rests  with  the  person  inflicting  tlie  injury  to  show 
the  accident  or  innocent  intention.  The  injury  intended  may 
be  either  bodily  pain,  constraint,  a  sense  of  shame,  or  other  dis- 
agreeable emotion  of  the  mind.  2.  When  violence  is  permitted 
to  elTect  a  lawful  purpose,  only  that  degree  of  force  must  be 
used  which  is  necessaiy  to  effect  such  purpose." 

The  proposition  announced  in  the  first  iiaragrr.ph,  tliough 
unquestionably  correct  in  tlie  abstract  and  dcchircd  as  law  in 
terms  by  our  statute  (Penal  Code,  art.  485),  it;  not  !ipi)li cable, 
without  further  explanation,  to  cases  such  as  the  one  under  con- 
sideration. It  has  direct  application  only  to  acts  of  "  unlawful 
violence,"  in  the  first  instance,  such  as  are  essential  to  consti- 
tute the  assaults  and  batteries  defined  in  article  481,  Penal 
Code. 

But  "  violence  used  to  person  "  is  not  xmlawf ul,  and  "  docs 
not  amount  to  an  assault  and  battery  in  the  exercise  of  mod- 
erate restraint  or  correction  given  by  law  to  the  j)arent  over 
the  child,  the  guardian  over  the  ward,  the  master  over  his  ap- 
prentice, the  teaclior  over  the  scholar."  Penal  Code,  art.  490. 
In  all  such  cases  the  law  presumes,  from  the  relation  of  the 
parties,  an  entire  absence  of  any  criminal  or  unlawful  intent 
to  injure;  and,  in  order  to  effect  laAvful  purposes,  ])ermits  tho 
parent,  guardian,  master  or  teacher  to  restrain  and  correct  tho 
child,  ward,  apprentice  and  scholar.  When  tho  teacher  cor- 
rects his  scholar  the  presumption  is  that  it  is  in  the  exercise 
and  within  the  bounds  of  his  lawful  authority,  and  it  does  not 
"  devolve  upon  him  to  show  accident  or  his  innocent  intention." 
Neither  is  it  any  criterion  of  his  act  or  intention  that  "  bodily 


:] 


pain,  com 
tion  of  tl 
law,  to  in 
of  restrai 
.  violence  i 
gree  of  f< 
purpose." 
It  bein« 
Wisdom, 
that  tlie  f 
the  whip 
tion,  the  i 
,  roc  lion  or 
•that  the 
sumcd  int 
not  coiK'l 
case,  the 
■"vliich  wci 
the  court 
crate,  (lef( 
If  it  was  1 
vated  assii 
his  le  lal  i 
a  stnuigei 
moiisure  c 
nor  is  it  |i 
cossive  m 
and  dispo 
rounding 
the  direct 
V.  The  Sk 

It  was 
refuse  the 
as  given, 
iiciently  ] 

lor  th( 
cause  ren 

Note.—] 
,iiiry  "that 
t!iat  t'lc  cai 
iiiiliciLvl;  t 


DOWLEN  V.  THE  STATE, 


ftlt 


' 


pain,  constraint,  a  sense  of  shame  or  other  disagreeable  emo- 
tion of  the  mind  "  is  produced.  He  has  the  right,  under  the 
laAV,  to  inflict  moderate  corporal  punishment  for  the  purpose 
of  restraining  or  correcting  the  refractory  pupil.  But  "  where 
•  violence  is  permitted  to  effect  a  lawful  purpose,  only  that  de- 
gree of  force  must  be  used  which  is  necessary  to  effect  such 
purpose."    Penal  Code,  arts.  490,  491. 

It  being  established  that  appellant  was  an  adult  male  —  that 
Wisdom,  the  party  alleged  to  have  been  injured,  was  a  child  — 
that  the  former  was  a  teacher  and  the  latter  his  scholar  —  that 
the  whipping  took  place  at  the  time  chai'ged  in  the  informa- 
tion, the  main  question  to  be  determined  was,  "Was  the  cor- 
.rcction  or  whipping  moderate  or  excessive?"  If  it  be  shown 
■that  the  force  is  excessive,  then,  indeed,  the  rule  as  to  pre- 
Binucd  intention  may  apply ;  but  this  presumption  of  the  law  is 
not  conclusive  even  then.  Upon  this  supposed  state  of  the 
case,  the  third  and  fourth  requested  instructions  of  defendant, 
-'vhicli  were  refused,  presented  the  law  most  aptly  and  fully,  and 
the  court  erred  in  not  giving  them.  "  If  the  correction  was  mod- 
erate, defendant  was  not  guilty  of  an  assault  and  battery  at  all. 
If  it  was  not  moderate,  but  excessive,  he  was  guilty  of  an  aggra- 
vated assault  and  battery,  by  liaving  exceeded  the  boundary  of 
his  le  -al  right  as  teacher,  and  placed  himself  in  the  attitude  of 
a  stranger.  It  is  true  the  law  has  not  laid  down  any  fixed 
measure  of  moderation  in  the  lawful  correction  of  a  scholar, 
nor  is  it  practicable  to  do  so.  Whether  it  is  moderate  or  ex- 
cessive must  necessarily  depend  upon  the  age,  sex,  condition 
and  disposition  of  the  scholar,  with  all  the  attending  and  sur- 
rounding circumstances  to  be  judged  of  by  the  jury,  under 
the  direction  of  the  court  as  to  the  law  of  the  case."  Stanfield 
V.  The  State,  4;J  Tex.,  Km. 

It  was  error  to  giv(5  the  instruction  we  have  discussed  and  to 
refuse  the  third  and  fourth  si)ecial  instructions;  and  the  cluirgo 
as  given,  which  was  also  excepted  to,  did  not  properly  and  suf- 
liciently  present  the  issues  and  law  of  the  case. 
;  lor  the  eri'ors  pointed  out,  the  judgment  is  reversed  and  the 
cause  remanded.  lievcrsed  and  remanded. 

Note.— In  Cass  v.  Randall,  4  Gray  (Mass.),  130,  the  court  instnicted  fclio 
.i»i'y  "  tlmt  u  teacher  liatl  a  right  to  inflict  coriwral  punishment  upon  a  scholar; 
t'int  tie  case  provjd  was  one  in  wliich  such  piuiiiilunent  might  properly  bo 
iaUiciuJ;  that  iu  inflicting  cor[K>ral  punishment  a  teacher  must  exercise  roa- 


52 


AMERICAN  CRimNAL  REPORTS. 


Bonable  judgment  and  discretion,  and  must  be  governed,  as  to  the  mode  and 
Beverity  of  the  punishment,  by  the  nature  of  tlie  oflfense,  by  tlio  age,  size 
and  apparent  powers  of  endurance  of  the  i^upil;  that  the  only  question  in 
this  case  was  whether  the  punishment  in  this  case  was  excessive  and  im- 
proper; that  if  tliey  sliould  find  the  punishment  to  have  been  reasonable  and 
proper,  the  defendant  could  not  be  deemed  guilty  of  an  assault  and  battery; 
but  if,  upon  all  the  evidence  in  the  case,  they  should  find  the  punishment  to 
have  been  improper  and  excessive,  the  defendant  might  properly  bo  found 
guilty  ui)on  this  complaint."  To  the  credit  of  the  jury,  bo  it  said,  they 
evidently  found  that  the  pupil  was  not  blessed  with  the  "  apparent  powers 
of  endurance"  of  a  mule,  as  they  brought  in  a  verdict  of  guilty.  Tho 
supreme  court,  passing  upon  exception  alleged  by  tho  defendant  to  tho 
above  charge,  saj's:  "  The  instructions  given  tended  to  justify  the  defend- 
ant in  punishing  his  pupils  with  greater  severity  than  is  consistent  with  a 
just  and  humane  exercise  of  the  authority  conferred  on  him  by  law.    To  say 

the  least,  they  were  sufficiently  favorable  to  the  defendant 

Whether,  under  all  the  facts,  the  punishment  of  the  pupil  is  excessive,  must 
be  left  to  the  jury."  The  rule  is,  that  one  who  has  the  right  to  inflict  phys- 
ical chastisement  on  another,  and  who  proceeds  with  it  to  an  unreasonable 
extent,  becomes  guilty  of  an  assault  and  battery.  Hannan  v.  Edis,  15  Mass., 
347;  Scribres  v.  Beach,  4  Denio,  448;  Likes  v.  Dike,  17  Ohio,  454;  Doles  v. 
Piakciion,  7  Dana,  453;  The  State  v.  Ross,  2  Dutcher  (N.  J.),  224. 


Dunn  v.  The  People. 

(109  m.,  035.) 

Assault  with  INTE^^'  to  kill:    Change  of  venue  — Continuance — Rea- 
sonable doubt  —  Instructions — Evidence. 

1.  ClIANQE  OF  VENUE  ON  THE  GROUND  OF  PREJUDICE  ON  THE  PART  OF  THB 
PEOPLE  OF  THE  COUNTY. —  A  jictition  for  a  change  of  venue  in  a  crimi- 
nal case  was  based  on  the  alleged  prejudice  in  tho  minds  of  the  people 
of  the  county,  caused  by  the  publication  in  certain  newspapers  of 
prejudicial  accounts  of  tho  alleged  offense,  sucli  newspapers  having  a 
Btaiidiug  and  large  circulation  in  the  county.  Tise  state's  attorney  filed 
a  denial  of  tlie  statements  in  the  petition,  supported  by  countLr  afilda- 
vits,  going  to  show  that  such  prejudice  did  not  oxi.st  from  tho  publica- 
tion of  the  ai'ticles,  among  which  aflldavits  was  that  of  the  sheriff,  to 
the  effect  that  ho  talked  about  criminal  cases  with  people  from  all  parts 
of  the  county,  and  had  found  there  was  but  comparatively  little  in- 
terest taken  in  the  case,  and  that  from  his  knowledge  of  tho  temper  of 
the  people  of  the  county  he  had  no  hesitation  in  saying  that  tho  de- 
fondant  could  have  his  case  tried  as  fairly  and  impartially  in  that 
county  as  in  any  one  in  the  state.  It  was  held  that  this  court  was  not 
prepared  to  say  the  circuit  court,  in  denying  the  petition,  had  decided 
contrary  to  the  right  of  the  case. 
2.  CONTINUANCE  —  ABSENCE  OP  WITNESSES.— Ono  ground  for  a  continuance 
in  a  criminal  case  was  the  absence  of  witnesses;  but  it  did  not  appear 
from  the  affidavit  but  that  the  same  facts  might  be  proved  by  other 
witnesses.    Held,  that  tliis  ground  was  not  sufflcient. 


DUNN  V.  THE  PEOPLE. 


m 


3.  Same  — Want  of  time  for  attorney  to  prepare  the  nEPENSE.— An 

offense  was  alleged  to  have  been  committed  on  March  31,  and  the  de- 
fendant was  arrested  on  the  same  day,  so  that  both  lie  and  liis  counsel 
wore  then  infoi-med  of  the  nature  and  character  of  the  offense  with 
wliich  the  defendant  was  charged,  and  the  indictment  was  not  found 
until  forty-seven  days  thereafter,  and  the  trial  was  had  twenty  days 
later.  It  was  apparent  from  the  nature  and  character  of  the  case,  as 
shown  by  the  record,  that  the  defendant  had  ample  time  to  prepare  for 
trial.  It  was  held  no  error  to  refuse  a  continuance  on  the  giound  that 
defendant's  counsel  had  been  so  occupied  with  other  casen  in  the  circuit 
and  appellate  courts  that  he  had  not  sufficient  tune  and  opportunity  to 
prepare  the  case  for  trial. 

4.  CiiniiNAL  LAAv  —  Insanity  as  a  defense — As  to  the  test  of  responsi- 

bility.—  Where  reason  and  judgment  ai-e  not  overcome,  Lut  the 
person  charged  with  crime  at  the  time  retains  the  power  to  choose  be- 
twoon  riglit  and  wrong  as  to  the  particular  act  done,  ho  cannot  escape 
ii'sponsibiHty  for  his  acts  under  the  plea  of  insanity. 

5.  So,  if  at  the  time  a  deadly  assault  is  made,  the  person  making  the  as- 

sault knew  that  it  was  wrong  to  commit  such  an  act,  and  had  the 
power  of  mind  to  choose  eitlier  to  do  or  not  to  do,  and  of  controlling 
his  conduct  in  accordance  with  such  choice,  he  will  be  held  amenable 
to  the  law,  although  ho  was  not  entirely  and  perfectly  sane. 
C.  Same  —  Reasonable  doubt  —  Defined. — A  reasonable  doubt,  as  vised 
in  instructions  in  criminal  trials,  is  one  arising  from  a  candid  and  im- 
paitial  investigation  of  all  the  evidence,  and  such  as  in  the  graver 
transactions  of  life  would  cause  a  reasonable  and  prudent  man  to  hesi- 
tate and  ]iause. 

7.  Same —  Of  an  instruction  attempting   to  define  a  reasonable 

DOUBT. —  On  a  trial  of  one  for  an  a.^sault  witli  intent  to  mnrdcr,  the 
court  instnicted  tlie  Jury:  "Tliatthe  guilt  of  the  defendant  nuift  bo 
proved  beyond  a  reasonable  doubt,  as  used  in  the  inKtnutions  in  tliis 
case,  means  not  a  possible  doubt,  not  a  coiijei-tural  doubt,  not  an  im- 
aginary doubt,  not  a  doubt  of  the  absolute  certainty  of  tiie  guilt  of 
the  accused,  because  everything  relating  to  human  ad'airs  and  depend- 
ing uix)n  moral  evident'o  is  open  to  conjectural  or  imaginary  doubt, 
and  because  absolute  certainty  is  not  reciuircd  by  law.  A  n  asonablo 
doubt  exists  in  that  state  of  tlie  case  wliich,  alter  considering  and 
comparing  all  the  evidence  in  the  case,  leaves  the  minds  of  tlie  jury  in 
that  conditicm  that  they  cannot  say  tiiat  they  I'eel  an  abiding  convic- 
tion of  the  truth  of  tlie  charge;  but  when  the  evi<lence  in  the  case  es- 
tabliiihes  tlie  truth  of  tlie  charge  to  a  reasonable  and  moral  certainty, 
that  convinces  the  understanding  and  satisfies  the  reason  and  judg- 
ment of  the  jury  of  the  tnith  of  the  charge,  then,  in  law,  there  exists 
no  reasonable  doubt."  Ilild,  that  the  instruction  was  more  like  an 
argument  than  a  proposition  of  law,  and  was  erroneous. 

8.  Instruction  — As  to  form  of  verdict  in  criminal  case  —  As  ignor- 

ing THE  right  to  find  for  4.  lesser  offense — Duty  of  defense 
to  ask  a  counter  instruction.— An  uistruction  given  for  the  people, 
on  the  trial  of  one  for  an  assault  with  intent  to  murder,  directing  the 
jury  as  to  the  form  of  their  verdiit  in  c;ise  of  conviction,  was  oh ji'cted 
to  as  error,  inasmuch  as  the  direction  to  fix  the  term  the  defendant 


51 


AMERICAN  CRimNAL  REPORTS. 


Bhould  serve  in  the  penitentiary,  if  iound  guilty,  ignored  the  riglit  of 
the  jury  to  find  him  guilty  of  a  lesser  offense.  Held,  that  while  not 
concurring  in  such  view,  if  it  were  correct  it  was  the  duty  of  counsel 
for  the  defendant  to  have  asked  an  instruction  that  the  jury  might 
find  a  verdict  for  an  assault  with  a  deadly  weapon,  etc.,  and  not  hav- 
ing done  so,  they  were  in  no  position  to  complain. 
0.  Same— Too  many  instructions.— On  a  trial  upon  an  indictment  for 
an  assault  with  intent  to  murder,  the  court,  for  the  defense,  gave 
eleven  instructions  as  asked,  and  twelve  others  after  modifying  them, 
and  refused  twenty-three.  It  was  held  that  the  mlcs  of  law  applicable 
to  the  case  were  simple  and  plain,  and  that  the  practice  of  incumber- 
ing the  record  with  so  many  instructions  was  a  vicious  one,  and  it 
ought  not  to  bo  encouraged. 

10.  Same  — In  tiie  language  Oi?  the  statute.— On  a  criminal  trial,  an 

instruction  following  the  language  of  the  statute,  wliich  declares  that 
drunkenness  is  no  excuse  for  crime,  is  not  erroneous. 

11.  New  trial- Verdict  against  the  evidence  — In  criminal  case.— 

Where  one  was  convicted  of  an  assault  on  his  wife  with  intent  to  kill 
and  murder  her,  and  the  proof  was  clear  that  tho  accused  did  shoot 
his  wife,  it  was  held  that  the  question  whether  the  shooting  was  an 
accident,  or  was  intentional,  was  a  question  of  fact  for  the  jury;  and 
that  when  they  have  settled  that  fact  adversely  to  the  defendant,  with- 
out passion  or  prejudice,  in  accordance  with  the  evidence,  it  was  not 
the  province  of  this  court  to  disturb  the  verdict. 

12.  Evidence  — Weight  of  defendant's  testimony  in  criminal  case, 

WHEN  testifying  IN  HIS  OWN  BEHALF.— Ou  the  trial  of  one  Uiv  au 
assault  with  intent  to  murder,  the  court  instructed  tho  jury  that  tho 
credibility  and  weight  to  be  given  to  the  testimony  of  the  defenilant 
testifying  in  his  own  behalf,  was  a  matter  with  the  jury,  and  that  in 
weighing  tho  defendant's  evidence  they  had  a  right  to  take  into  con- 
sideration his  manner  of  testifying,  the  reasonableness  of  his  account 
of  the  transaction,  and  his  interest  in  tho  result.  Held,  that  there  was 
no  error  in  giving  the  instruction. 

Writ  of  Error  to  tho  Circuit  Court  of  McLean  County ;  the 
Hon.  Owen  T.  Eeoves,  Judge,  presiding. 

3L\  Thomas  F.  Tqjton,  for  the  plaintiff  in  error. 
Mr.  liobert  B.  Porter,  state's  attorney,  for  the  people. 

Mb.  Justice  Ckaio  delivered  the  opinion  of  tho  court. 

This  was  an  indictment  in  the  circuit  court  of  McLean 
county,  against  Kobbins  P.  Dunn,  for  an  assault  on  Phoebo 
Dunn,  with  intent  to  commit  murder.'  Upon  a  trial  before  a 
jury  the  defendant  was  found  guilty,  and  his  term  of  imprison- 
ment in  the  penitentiary  was  iixcd  at  seven  years.  To  reverse 
tho  judgment  of  the  circuit  court  tho  defendant  sued  out  this 
writ  of  error. 

;    Tho  first  alleged  error  is  the  decision  of  the  court  overruling 


DUNN  V.  THE  PEOPLE. 


55 


clcfcniUiiit's  petition  for  a  change  of  venuo.  The  ground  set 
up  and  mainly  relied  upon  in  the  petition  was,  that  certain 
newspapers  published  in  Blooinington  had  published  prejudicial 
accounts  of  the  alleged  assault,  and  as  they  had  a  standing 
and  liii'ge  circulation  in  the  county,  by  reason  of  such  publica- 
tions the  minds  of  the  inhabitants  of  the  county  were  preju- 
diced against  the  defendant.  The  state's  attorney  filed  a  denial 
of  the  allegations  contained  in  the  petition,  and  in  support  of 
the  denial  ho  also  filed  counter  allidavits  of  certain  citizens  who 
were  well  acquainted  in  the  county,  who  state,  in  substance, 
that  no  ]>reju(lice  exists  in  the  county  against  the  defendant. 
Among  the  allidavits  filed  was  one  made  by  the  sheriff  of  the 
county,  who  btatcs  that  he  talks  about  criminal  cases  with 
peo[)lo  from  all  parts  of  the  county,  and  finds  that  there  is  but. 
comparatively  little  interest  taken  in  what  is  called  the  "  Dunn 
case,"  and  from  his  knowledge  of  the  temper  of  the  people  of 
the  county  he  has  no  hesitation  in  saying  that  Dunn  could  have 
his  case  tried  as  fairly  and  impartially  in  McLean  county  as  in 
any  county  in  the  state. 

Section  22,  of  chapter  140,  of  the  Revised  Statutes  of  1874, 
provides :  "  When  the  cause  for  the  change  of  venue  is  the 
prejudice  of  the  inhabitants  of  the  county  against  the  defend- 
ant, his  petition  shall  set  forth  the  facts  on  which  ho  founds 
his  belief,  and  the  attorney  on  behalf  of  the  people  may  deny 
the  facts  stated  in  the  petition,  and  support  his  denial  by 
counter  alfidavits,  and  the  judge  may  grant  or  deny  the  peti- 
tion, as  shall  appear  to  be  according  to  the  right  of  the  case." 
Here  there  was  no  dispute  in  regard  to  the  publication  of  the 
newspaper  articles,  but  the  question  was,  whether  these  articles 
had  produced  a  prejudice  in  the  minds  of  the  inhabitants  of 
the  county  against  the  defendant.  If  they  had,  he  would  bo 
entitled  to  a  change  of  venue ;  if  they  had  not,  then  it  was 
the  duty  of  the  judge  to  overrule  the  petition.  The  affidavits 
filed  by  the  people  in  suppoi't  of  the  denial  of  the  allegations 
of  the  petition,  u])on  which  the  circuit  court  rendered  the  de- 
cision, tended  to  show  that  there  was  no  prejudice  of  the  in- 
habitants of  the  county  against  the  defendant,  and  we  are  not 
prepared  to  hold  that  the  decision  of  the  court  was  contrary 
to  the  right  of  the  case. 

The  alleged  offense  was  committed  on  March  31, 1883.  The 
indictment  against  the  defendant  Avas  returned  into  court  oa 


66 


AMERICAN  CRIMINAL  REPORTS. 


the  27th  day  of  Apni,  1883.  On  the  17th  day  of  May  foUow- 
ing,  the  defendant  entered  a  motion  for  a  continuance  of  the 
cause  until  the  next  term  of  court.  The  court  overruled  the 
motion,  and  the  decision  is  relied  upon  as  error.  One  gi'ound 
stated  in  the  affidavit  for  a  continuance  is  the  absence  of  two 
Avitnesses,  in  the  state  of  Pennsylvania ;  but  it  is  not  seriously 
contended  that  the  affidavit  Avas  sufficient  upon  this  point,  as 
it  does  not  appear  from  the  affidavit  but  the  same  facts  might 
be  proven  by  other  witnesses.  The  main  ground  relied  upon 
in  the  affldaAdt  for  a  continuance  Avas,  that  counsel  for  defend- 
ant had  been  so  occupied  Avith  other  cases  in  the  circuit  and 
appellate  courts  that  he  had  not  sufficient  time  and  opportunity 
to  prepare  the  case  for  trial.  A  defendant,  as  a  general  rule, 
should  not  be  compelled  to  go  trial,  after  an  indictment  has 
been  found,  until  he  has  had  a  reasonable  time  to  prepare  his 
case  for  trial ;  but  in  this  case  the  alleged  offense  Avas  commit- 
ted on  March  31,  and  the  defendant  Avas  then  arrested,  lie 
and  his  counsel  then  kneAV  the  nature  and  character  of  the 
offense,  and  then  kncAV  as  Avell  Avluit  the  defendant  Avould  bo 
called  upon  to  meet,  as  they  did  after  the  indictment  Avas  found. 
Here  was  a  period  of  forty-scA'en  days  from  the  time  of  arrest 
before  the  defendant  Avas  required  to  go  to  trial,  and  twenty 
days  after  indictment,  in  Avhich  he  might  prepare  for  trial,  and 
from  the  nature  and  character  of  the  case,  as  disclosed  by  the 
record,  it  is  apparent  that  defendant  had  ample  time  to  pre- 
pare for  trial. 

The  court  gave  ten  instructions  on  behalf  of  the  people,  and 
objection  is  made  to  all  of  them  except  the  first,  fourth  and 
eighth.  The  second  instruction  announced  the  Avell-known 
rule  that  the  credibility  and  Aveight  to  be  given  to  the  testi- 
mony of  the  defendant  Avas  a  matter  for  the  jury,  and  in 
Aveighing  the  defendant's  evidence  they  had  the  right  to  take 
into  consideration  his  manner  of  testifying,  tlie  reasonableness 
of  his  account  of  the  transaction,  and  his  interest  in  tlic  result. 
The  rule  applied  to  the  defendant  may  be  adopted  in  regard  to 
the  testimony  of  any  Avitness  called  to  testily  in  a  case,  and  no 
error  is  perceived  in  this  charge  to  the  jury.  The  third  merely 
folloAvs  the  language  of  the  statute,  which  declares  that 
drunkenness  is  no  excuse  for  crime, —  and  Ave  held  in  Fitzpat- 
rick  V.  The  People,  98  III,  270,  that  such  an  instruction  was  not 
erroneous.    The  fifth,  sixth  and  seventh  Avere  as  folloAvs : 


«5. 


DUNN  V.  THE  PEOPLE. 


"  5.  If  3'ou  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  that  at  the  time  of  committing  the  alleged  act  the  de- 
fendant was  able  to  distinguish  right  from  wrong,  then  you 
cannot  acquit  him  on  the  ground  of  insanity. 

"  0.  If  you  believe,  from  the  evidence,  beyond  a  reasonable 
doubt,  tliat  the  defendant  committed  the  crime  in  manner  and 
form  as  charged  in  tlie  indictment,  and  at  the  time  of  commit- 
ting such  act  was  able  to  distinguish  right  from  wrong,  you 
should  find  him  guilty. 

"  7.  If  from  all  the  evidence  in  the  case  you  believe,  beyond 
a  reasonable  doubt,  that  the  defendant  committed  the  crime  of 
whicli  he  is  accused,  in  manner  and  form  as  charged  in  the  in- 
dictment, and  that  at  the  time  of  the  commission  of  such 
crime  tlie  defendant  knew  that  it  was  wrong  to  commit  such 
crime,  and  was  mentally  capable  of  choosing  cither  to  do  or 
not  to  do  the  act  or  acts  constituting  such  crime,  and  of  gov- 
erning his  conduct  in  accordance  with  such  choice,  then  it  is 
your  ihity,  under  the  lav*',  to  find  him  guilty,  even  thougli  you 
should  believe,  from  the  evidence,  that  at  the  time  of  the  com- 
mission of  i\ie  crime  he  Avas  not  entirely  and  perfectly  sane,  or 
that  he  was  greatly  excited  or  enraged,  or  under  the  influence 
of  intoxicating  liquor." 

It  is  claimed  that  these  instructions  conflict  with  the  law  as 
declared  by  this  court  in  IIopps  v.  The  People^  31  III.,  oS5,  and 
Cham  V.  The  PeopU,,  40  id.,  353.  "Wo  do  not  so  mulerstand  the 
instructions.  In  the  IIopps  Caf^i',  in  discussing  the  question  of 
insiinity,  it  is  said:  ""We  have  come  to  the  conclusion  that  a 
safe  and  reasonable  test  in  all  such  cases  would  be,  that  when- 
ever it  should  appear  from  the  evidence  that  at  the  time  of 
doing  the  act  charged,  t!ic  prisoner  was  not  of  sound  mind, 
but  afi'ected  with  insanity,  and  such  affection  was  the  efficient 
caurio  of  the  act,  and  that  he  Avould  not  have  done  the  act  but 
for  that  airection,  he  ought  to  be  acquitted.  But  this  unsound- 
ness of  mind,  or  aU'ection  of  insanity,  must  be  of  such  a  de- 
gree as  to  create  an  uncontrollable  impulse  to  do  tlie  act 
charged,  by  overriding  the  reason  and  judgment,  and  obliter- 
ating the  sense  of  I'ight  and  Avrong  as  to  the  particular  act 
done,  and  depriving  the  accused  of  the  power  of  choosing  be- 
tween them."  Under  this  decision,  where  reason  and  judg- 
ment were  not  overcome,  but  the  person  retained  the  power  to 
choose  between  right  and  wrong  as  to  the  particular  act  done, 


58 


AMERICAN  CRIMINAL  REPORTS. 


he  could  not  escape  responsibility  for  his  acts  untlor  the  plea 
of  insanity.  This,  too,  is  the  doctrine  of  the  instructions,  if 
we  undei-stand  them  correctly.  Under  the  iifth  and  sixth,  if 
defendant  was  able  to  distinguish  between  right  and  wrong, 
he  should  be  held  liable.  So,  too,  if  at  the  time  the  crime  was 
committed  the  defendant  knew  that  it  was  Avrong  to  commit 
such  a  crime,  and  had  the  power  of  mind  to  choose  cither  to 
do  or  not  to  do  the  act,  and  of  controlling  his  conduct  in  ac- 
cordance with  such  choice,  then  he  ought  to  bo  held  resjion- 
sible,  although  he  was  not  entirely  and  perfectly  sane.  This, 
in  substance,  is  the  principle  announced  in  the  seventh  instruc- 
tion, and  we  regard  it  correct.  "Where  a  man  knows  that  it  is 
wrong  to  do  a  certain  act,  and  possesses  the  power  of  mind  to 
do  or  not  to  do  the  act,  it  would  be  a  dangerous  doctrine  to 
hold  that  such  person  should  not  be  held  responsible  because 
he  might  not  be  regarded  entirely  and  perfectly  sane. 
Instruction  Iso.  D,  given  for  the  people,  is  as  follows : 
"  That  tlie  guilt  of  the  defendant  nmst  be  proved  beyond  a 
reasonable  doubt,  as  used  in  the  instructions  in  this  case, 
means,  not  a  possible  doubt,  not  a  conjectural  doubt,  not  an 
imaginary  doubt,  not  a  doubt  of  the  absolute  certainty  of  tlie 
guilt  of  the  accused,  because  everything  relating  to  human 
affairs,  and  depending  upon  moral  evidence,  is  open  to  con- 
jectural or  imaginary  doubt,  and  because  absolute  certainty  is 
not  required  by  law.  A  reasonable  doubt  exists  in  that  state 
of  the  case  Avhich,  after  considering  and  comparing  all  the  evi- 
dence in  the  case,  leaves  the  minds  of  the  jury  in  that  condition 
that  they  cannot  say  they  feel  an  abiding  conviction  of  the 
truth  of  the  charge;  but  where  the  evidence  in  the  case  estab- 
lishes the  truth  of  the  charge  to  a  reasonable  and  moral  cer- 
taint}^,  that  convinces  the  understanding  and  satisfies  the  reason 
and  judgment  of  the  jury  of  the  truth  of  the  charge,  then,  in 
law,  there  exists  no  reasonable  doubt." 

This  court  has  had  occasion,  in  a  number  of  cases,  to  de- 
termine the  scope  and  meaning  of  the  term  "reasonable  doubt," 
and  it  has  been  uniformly  held  that  a  reasonable  doubt  is  one 
arising  from  a  candid  and  impartial  investigation  of  all  the 
evidence,  and  such  as,  in  the  grave.-  transactions  of  life,  would 
cause  a  reasonable  and  prudent  mxn  to  hesitate  and  pause. 
Mai/  V.  The  People,  60  111,  119;  MUler  v.  The  People,  39  id., 
457;  Comiaghan  v.  The  People,  88  id.,  400.    In  a  number  of 


DUNN  V.  THE  PEOPLE. 


59 


cases  in  this  court  an  instruction  given  for  the  people,  contain- 
ing the  above  proposition,  lias  been  sustained;  but  wo  are 
aware  of  no  case  Avhoro  an  instruction  like  the  one  given  in 
this  case  has  been  sustained  by  this  couit.  The  instniction  is 
not  a  proposition  of  law,  but  it  is  more  in  the  nature  of  an 
argument  than  anything  ^ve  can  lilccn  it  to,  and  in  a  case  wliere 
the  testimony  is  conflicting,  or  such  as  to  leave  the  minds  of  the 
jury  in  doubt,  it  would  bo  likely  to  prejudice  the  jury.  While 
we  do  not  hesitate  to  condemn  the  instruction,  still  wo  do  not 
think  it  did  any  harm  in  this  case,  for  the  reason  that  the  evidence 
did  not  leave  the  guilt  of  tlie  defendant  in  doubt.  The  guilt  of 
the  defendant  was  so  clear  and  palpable,  from  the  evidence,  that 
no  question  of  doubt  could  arise,  and  while  the  instruction  was 
erroneous,  the  error  could  work  no  injury  in  the  case. 

The  tentli  and  last  instruction  given  for  the  people,  merely 
directs  the  jury  as  to  the  form  of  the  verdict.  But  it  is  said 
tliat  the  direction  to  fix  tlie  term  defendant  should  serve  in  the 
penitentiary,  if  found  guilty,  ignored  their  right  to  find  the  de- 
fendant guilty  of  tlie  lessor  offense,  and  hence  was  erroneous. 
Wo  do  not  concur  in  this  view,  but  if  counsel  for  defendant  are 
correct,  it  was  for  them  to  prepare  an  instruction  informing  the 
jury  that  they  should  bring  in  a  verdict  of  guilty,  only,  if  they 
find,  from  the  evidence,  that  the  defendant  Avas  guilty  of  tlio 
lesser  offense, —  an  assault  Avith  a  deadly  weapon ;  and  as  they 
did  not  i»sk  for  an  instruction  of  that  character,  they  are  in  no 
position  to  complain. 

The  court  gave  to  the  jury,  on  behalf  of  the  defendant, 
eleven  instructions  as  asked,  twelve  others  were  modified  by 
tlie  court,  and  given  as  modified,  and  twenty-three  were  re- 
fused. It  would  be  extending  this  opinion  to  a  greater  length 
than  we  have  the  time  to  do,  should  we  undertake  to  review 
the  decision  of  the  court  on  the  thirty-five  refused  and  modi- 
fied instructions,  and  it  would  serve  no  useful  purpose  to  do  so. 
We  are  satisfied,  aftdf  a  careful  examination  of  the  record,  that 
the  jury  was  fully  and  fairly  instructed  in  regard  to  the  law 
involved  in  the  case,  and  if  it  be  true  that  some  of  tlie  refused 
instructions  contain  correct  propositions  of  law,  no  harm  was 
done  in  refusing  them.  The  rules  of  law  applicable  to  a  case 
of  this  character  are  simple  and  plain,  and  the  practice  of  in- 
cumbering the  record  with  so  many  useless  instructions  is  a 
vicious  one,  and  it  ought  not  to  be  encouraged. 


60 


AMERICAN  CRimNAL  REPORTS. 


It  is  also  claimed  that  the  verdict  of  the  jury  is  against  the 
evidence.  There  is  no  controversy  in  regard  to  the  fact  that 
the  defendant  shot  his  former  Avife.  lie  claims  that  the  re- 
volver which  he  had  in  his  possession  was  discharged  by  acci- 
dent, while  engaged  in  a  sculUe  with  his  son.  In  this,  however, 
he  is  contradicted  by  his  wife  and  several  nionibers  of  his  family, 
who  were  present  at  the  time  the  shooting  was  done.  Wliether 
the  shooting  was  an  accident,  for  which  the  defendant  should 
not  be  held  responsible,  or  whether  it  was  done  intentionally, 
was  a  question  of  fact,  purely  for  the  determination  of  the  jury ; 
and  when  they  have  settled  that  question  Avithout  passion  or 
prejudice,  in  accordance  with  the  evidence,  it  is  not  the  province 
of  this  court  to  disturb  the  verdict  of  the  jury. 

The  judgment  of  the  circuit  court  Avill  be  airirmcd. 

Judgment  affirmed. 


Dpnaavay  v.  The  People. 

(110  111.,  333.) 

Assault  avith  intent  to  kill:  Shooting  a  third  person. 

1.  Assault  to  murder  a  person  other  than  the  one  intended,  or 

AVITHOUT  intent  AS  TO  ANY  PARTICULAR  ONE  — RECKLESSNESS  — GEN- 
ERAL malice. —  Whore  a  person  deliberately  shoots  at  A.,  and  in  tho 
direction  of  B.,  and  tho  ball  misses  A.  and  strikes  B.,  inflicting  a  wound, 
these  facts  will  sufficiently  show  tho  intention  of  the  person  shooting 
to  kill  and  murder  B.,  although  ho  has  no  actual  malice  or  ill-feeling 
toward  B.,  and  he  may  bo  convicted  of  an  assault  uix)n  B.  with  intent 
to  kill  and  murder  him. 

2.  Where  an  act,  unlawful  in  itself,  is  done  with  deliberation  and  with  tho 

intention  of  killing  or  inflicting  serious  bodily  harm,  though  tho  inten- 
tion bo  not  directed  to  any  particular  person,  and  death  onsuo,  it  will  Ijo 
murder  at  common  law.  Thus,  if  a  party  fires  a  gun-shol  into  a  crowd 
of  persons  with  intent  to  murder  some  one,  or  when  it  is  done  Avith 
criminal  recklessness,  tho  killing  Avill  bo  mui'dw,  although  no  intention 
existed  to  kill  any  particular  person. 

3.  Where  one,  without  provocation,  disch;irged  his  pistol  dirortly  at  a  group 

of  persons,  it  matters  not  what  person  ho  intended  to  kill;  or  if,  under 
such  circumstances,  he  shoots  a  person  other  than  the  one  intended,  tho 
act,  from  its  recklessness  and  want  of  provocation,  will  bo  referred  to 
no  other  cause  tlian  malice.    Such  reckless  acts  imply  general  malice. 

"Writ  of  Error  to  the  Circuit  Court  of  Williamson  County ; 
the  Hon.  D.  M.  Browning,  Judge,  presiding. 


in  the 
that  Av 
about 


DUNAWAY  V.  THE  PEOPLE. 


<^ 


3fr.  James  31.  Gregg,  for  tho  plaintiff  in  error. 
J//'.  William  W.  Clemens,  state's  attorney,  and  J//*.  Jamea 
McCartmy,  attorney-general,  for  tho  people. 

Mb.  Justice  Scorr  delivered  tho  opinion  of  the  court. 

In  tho  indictment  presented  by  tho  grand  jury  of  Vrilliam- 
son  county,  against  James  A.  Dunaway,  ho  is  cliargcd  with  an 
assault,  with  intent  to  commit  murder,  upon  tlio  powon  of 
Ilartwell  Ilendrickson.  On  tho  trial  at  tlu;  Noveiu!)or  term, 
1SS3,  of  the  circuit  court  of  that  county,  delcndant  v.a;}  found 
guilty,  and  sentenced  to  the  penitentiary  for  a  period  oi  six 
years. 

There  is  very  little  conflict  in  tho  evidence,  and  tlio  material 
facts  can  be  readily  ascertained.  It  appears  that  on  tho  even- 
ing of  January  4,  1SS3,  defendant  was  at  tho  dtjor  of  a  store 
in  the  village  where  the  parties  reside,  talking  witli  r.omo  ono 
that  was  sweeping  tho  sidewalk,  when  Dow  llavLwoU  was 
about  to  pass  into  tho  store.  Some  conversaticm  not  of  an 
angry  character  occurred  between  defendant  and  Ilartwell,  as 
to  Avhether  tho  latter  would  commence  other  ])i'ococdings 
against  defendant.  Shortly  afterwards  defendant  entered  the 
store  where  Ilartwell  and  several  other  persons  wore  standing 
or  sitting  aroimd  the  stove,  among  whom  was  IJarLwell  Ilen- 
drickson.  It  seems  Ilai'twcll  is  an  attorney  at  law,  and  had 
commenced  proceedings  on  boluilf  of  defendant's  wife  for 
divorce  from  him,  but  whether  defendant  (mtertainod  any  ill- 
will  against  Ilartwell  on  that  account  does  not  certainly  appear. 
But  little  was  said  by  defendant  after  he  entered  the  store  and 
approached  the  stovo  where  the  ])artios  were,  before  he  drew  a 
revolver  and  shot  towards  Ilartwell,  the  bail  taking  effect  on 
Ilartwell  Ilendrickson,  inflicting  a  very  serious  wound.  A 
second  shot  was  fired,  but  it  did  not  hit  any  one. 

Defendant  Avas  no  doubt  under  the  influence  of  intoxicating 
liquors  at  the  time  of  the  shooting,  yet  not  so  drunk  but  Avhat 
he  knew  most,  if  not  all,  that  occurred.  It  is  not  pretended 
by  defendant,  or  any  ono  for  him,  tho  pistol  was  accidentally 
discharged.  His  own  testimony  is :  "I  shot  it  because  I  wanted 
to."  He  also  says  ho  "had  no  feeling  against  either  Ilendrick- 
son or  IlartAvell."  Tho  judgment  might  be  sustained  on  tho 
ground  the  intention  Avas  sufficiently  i)roved  to  kill  and  murder 
Hendrickson.    Ho  shot  in  the  direction  ho  was  standing,  and 


62 


AMERICAN  CRIMINAL  REPORTS. 


the  Ita  is,  a  party  intends  the  necessary  consequences  of  an 
act  (lelil  ,  lately  done.  Giving  tliat  construction  to  the  evidence, 
the  instructions  given  by  the  court  for  the  people  contain 
nothing  calculated  to  mislead  the  jury. 

Section  24  of  the  Criminal  Code,  under  which  defendant  was 
indicted,  provides:  "Whoever  attempts  to  commit  murder, 
...  by  any  means,  shall  be  guilty  of  the  crime  of  an  as- 
sault with  intent  to  commit  murder,"  and  the  theory  of  the 
defense  is,  that  if  defendant  intended  to  kill  and  murder  any 
one,  it  was  Ilartwell.  The  evidence,  in  some  degree,  at  least, 
warrants  this  view  of  the  case.  The  conversation  at  the  door 
of  the  store,  before  the  parties  entered,  shows  defendant  had 
some  ill-feeling  towards  Ilartwell.  His  inquiry  Avhether  Hart- 
well  was  going  to  "get  up  another  suit"  against  him,  shows  un- 
kind feeling,  to  say  the  least  of  it.  On  the  hypothesis  the 
defendant  intended  to  murder  Ilartwell,  the  argument  is,  the 
shootinff  of  Ilendrickson  was  not  intended,  and  therefore  de- 
fcndant  could  not  bo  guilty,  under  the  statute  cited,  of  an  as- 
sault with  an  intent  to  murder  Ilendrickson.  The  law  is,  that 
had  defendant  shot  at  Ilartwell  with  intent  to  murder  him, 
but  killed  Ilendrickson,  the  killing  of  the  latter  would  have 
been  murder  at  common  laAV.  The  rule  in  such  cases  rests  on 
the  fact  there  was  a  felonious  intent  to  commit  murder.  It  is 
said  when  an  unlawful  act  in  itself  is  done  with  deliberation,, 
and  with  the  intention  of  killing  or  inflicting  serious  bodily 
harm,  though  the  intention  be  not  directed  to  any  particular 
person,  and  death  ensue,  it  Avill  be  murder  at  common  law. 
Thus,  if  a  party  fires  a  gun-shot  into  a  crowd  of  persons,  with 
intent  to  murder  some  one,  or  when  it  is  done  with  criminal 
recklessness,  tlic  killing  will  be  murder,  altliough  no  intention 
existed  to  kill  any  particular  person.  As  the  argument  is  un- 
derstood, it  is  not  denied  that  had  the  wound  on  Ilendrickson 
proved  fatal  the  killing  Avould  have  been  murder,  could  it  havo 
been  established  the  defen  lant  intended  to  kill  Ilartwell.  Tho 
charge  is,  defendant  assaulted  Ilendrickson  with  intent  to 
commit  murder,  and  the  insistence  is,  no  such  intent  is  shown, 
because  the  intent  was  to  murder  Ilartwell.  Tho  roasoninir  on 
this  brancli  of  tlio  case  is  too  subtle  to  bo  adopted  with  safety. 
Undoul)tcdly  there  are  cases  that  hold  tlie  doctrine  contended 
for,  and  co  many  of  tho  early  text  writers  wrote,  but  the  bet- 
ter and  more  modern  doctrine  is  against  tho  position  taken. 


Concedir 
Iloiuh'icl 
severe  av( 
Avitli  into 
crime  th 
cither  in 
In  tho 
ant  was  i 
Avhicli  de 
sault,  or 
ickmy,  s; 
state  prif 
ant  did  n 
fore  tlie  : 
proven, 
of  person 
AA'as  woun 
intended 
held,  defe 
Avitncss  A\ 
autliorizci 
tliat  on  1 
necessary 
The  State, 
unlike  the 
pistol  Avas 
Avoumlod 
])osition  o 
ably  appr 
viction  or 
Avilh  inter 
A\as  not  < 
]it'(j!na  V. 
Dut  the 
J^cpi'ij  et 
dieted  am 
dor.     On 
instructed 
tliat  one 
prepense, 
Avould  bo 


DUNAWAY  V.  THE  PEOPLE. 


Conceding,  as  is  done,  had  the  shot  fired  by  defendant  killed 
Iloiulrickson  it  would  have  !ieeii  murder,  the  proposition  the 
severe  Avounding  by  the  same  shot  Avould  not  have  been  done 
Avilh  intent  to  commit  murder, —  that  is,  to  commit  the  greater 
crime  that  might  have  been  the  result, —  finds  no  sanction 
citlier  in  reason  or  the  analogies  of  the  law. 

In  the  case  of  Walker  v.  The  State,  8  Ind,,  290,  the  defend- 
ant was  indicted  and  convicted  under  the  statute  of  that  state, 
which  declares :  "  Every  person  Avho  shall  perpetrate  an  as- 
sault, or  an  assault  and  battexy,  with  an  intent  to  commit  a 
i'(.>i()ny,  shall,  upon  conviction  thereof,  bo  imprisoned  in  the 
state  prison,"  and  the  defense  insisted  upon  was,  that  defend- 
ant did  not  intend  to  shoot  tiio  prosecuting  witness,  and  there- 
fore tlie  intent  to  murder,  as  laid  in  the  indictment,  was  not 
proven.  It  appeared  defendant  deliberately  shot  into  a  crowd 
of  persons,  among  whom  was  the  prosecuting  witness,  and  who 
was  wounded  by  the  shot.  Althougli  defendant  may  also  have 
intended  to  murder  another  person  in  the  same  crowd,  it  was 
held,  defendant  having  committed  a  batteiy  on  the  prosecuting 
Avitucss  Avith  a  weapon  likely  to  cause  death,  the  jury  Avero 
authorized  to  iind  the  intent  as  charged  in  the  indictment,  and 
that  on  the  principle  every  man  is  su])posed  to  intend  the 
necessary  consequences  of  his  0\vn  act.  The  case  of  i'aJh.ihan  v. 
The  State,  21  Ohio  St.,  300,  is  a  case  arising  under  a  statute  not 
unlike  the  one  in  the  case  last  cited,  and  it  was  ruled,  where  a 
pistol  was  discharged  with  criminal  intent  at  one  person,  and 
Avoundod  another,  who  was  at  the  time  known  to  be  in  such 
])osition  or  proximity  that  his  injury  might  have  been  reason- 
ably ai)prehcndcd  as  a  probable  consequence  of  the  act,  a  con- 
viction on  an  indictment  averring  tlie  shooting  of  the  latter 
Avith  intent,  is  good  under  the  statute  of  that  state,  and  that  it 
Avas  not  error,  on  the  trial,  to  instruct  the  jury  accordingly. 
Ju'(jlna  V.  Smith,  33  Eng.  L.  &  Eq.,  5(57. 

Ihit  the  question  involved  is  not  new  in  this  court.  In 
l^cri'ij  et  al.  v.  The  People,  \\  111.,  49(5,  defendants  Avcro  in- 
dicted and  con\'icted  of  an  assault  Avith  intent  to  commit  mur- 
der. On  the  trial,  at  the  instance  of  the  prosecution,  the  court 
instructed  tlie  jury  that  if  tliey  believed,  from  the  evidence, 
tliat  one  of  defendants  iired  the  ])istol,  oitlier  Avith  malice 
])r('i)enHe,  or  a  total  disregard  of  human  life,  then  the  hiAV 
would  bo  for  the  people.    In  remarking  on  that  instruction 


u 


AMERICAN  CRIMINAL  REPORTS. 


the  court  said :  "  Where  the  act  is  committed  deliberately,  and 
is  likely  to  bo  attended  witli  dangerous  consequences,  the  mal- 
ice requisite  to  murder  will  be  presumed."  The  instruction 
was  a|)])roved  because  predicated  upon  that  principle  of  law 
wliicli  attributes  malice  to  reckless  acts  of  homicide,  Avhere  no 
particular  motive  can  be  traced. 

The  case  of  Vanclermarh  d  al.  v.  The  People,  47  111.,  122,  is 
analogous,  both  in  principle  and  in  its  facts,  with  the  case  now 
before  tliis  court.  Defendants  were  indicted  for  an  assault 
with  an  intent  to  commit  murder,  and  it  was  insisted  in  that  case, 
as  here,  that  defendants  shot  at  another  person,  and  it  was 
accidental  the  prosecuting  witness  was  hit.  There  Avas  a  con- 
llict  in  the  evidence  Avhether  the  defendant  who  lircd  the  shot 
intended  to  slioot  another  person.  Tlio  affray  occurred  be- 
tween one  of  the  defendants  and  Hand,  and  it  seems  another 
defendant  drew  his  pistol,  and  the  shot  fired  struck  tlic  prose- 
cuting witness,  wlio  was  not  in  the  crowd.  Under  tlieso  cir- 
cumslances,  it  was  said  by  the  court,  tlie  jury  woi'o  warranted  in 
the  conclusion  defendant  was  actuated  by  malice  against  the 
party  injured,  or  if  not,  his  conduct  was  so  reckless  tliat  it  im- 
plied a  total  disregard  for  tlie  lives  of  others.  The  act  was 
such  as  implied  general  malice,  and  as  defendant  evidently  in- 
tended to  shoot  some  one,  when  it  Avas  apparent  it  Avas  Avith- 
out  any  provocation,  the  act  Avas  referred  to  malice,  antl  the 
conviction  of  the  party  that  did  the  shooting  Avas  sustained. 
The  facts  in  the  case  being  considered  bring  it  precisely  \vithin 
the  doctrine  of  the  case  cited.  Here,  defendant  discharged 
his  pistol  directly  at  the  group  of  men  around  the  stove,  and 
Avhether  he  intended  to  kill  Ilartwell  or  llendrickson,  ho  must 
haA'e  intended  to  kill  and  murder  some  one  of  the  number. 
The  act  Avas  deliberately  done,  and  Avas  done  Avilh  such  an 
utter,  reckless  disregard  for  the  lives  of  others,  Avhero  no  ap- 
parent provocation  existed  for  the  shooting,  it  can  be  referred 
to  no  other  cause  than  malice,  and  that  is  suflicient,  on  the 
authority  of  the  previous  decisions  of  this  court,  to  sustain  the 
conviction.  The  instinictions  given  by  the  court,  at  the  in- 
stance of  the  prosecution,  conform  so  nearly  to  this  a'Ioav  of 
the  hiAV  it  is  not  possible  they  could  liaA'e  misled  tlie  jury,  to 
the  prejudice  of  defendant.  Indeed,  the  evidence  so  fully 
Avarrants  the  conviction,  it  is  plain  to  be  seen  the  jury  Avero 
not  misled.    That  some  of  the  instructions  are  subject  to  criti- 


WILLIAMS  V.  THE  STATE. 


G5 


cism  on  account  of  the  pliruscology  in  which  they  arc  ex- 
pressed, may  be  conceded.  Entire  accuracy  in  the  use  of 
liing'uago  in  an  instruction  containing  a  correct  proposition  of 
law  wouid.  of  •  .iirse,  be  desira^jlo,  but  it  is  not  always  attain- 
able, 11'  i  bo  reasonably  expected.  It  is  not,  and  ought 
not  to  be,  tiie  practice  to  re\'erse  a  judgment  in  a  criminal  case 
because  some  iiuiccuracy  in  word  or  phrase  nuvy  be  found  to 
exist  in  an  instruct!' u  which  contains  ii  correct  proposition  of 
law,  although  not  \ery  h;ip])ily  expressed.  Such  a  practice 
would  render  the  administration  of  the  criminal  law  so  technical 
and  diliicult  as  to  defeat  the  ends  of  justice.  The  conviction  of 
defendant  is  wai  i;  led  both  by  law  and  the  evidence,  and  the 
judgment  again  i  Jsiui  ought  not  to  be  reversed  on  account  of 
slight  inaccuracies  in  the  statement  of  the  law,  that  could  in 
nowise  affect  the  merits  of  the  defense. 

The  judgment  will  bo  allirmed. 

Judgment  ajjlrmcd. 


"Williams  v.  The  State. 

(G7  Ga.,  187.) 

Bastardy:  Jurisdiction. 

Gist  Oi*  offknse  is  the  refusal  of  the  putative  father  to  orvE  eond.— 
The  K'«t  1)1"  tlu!  offt'iiHi.!  of  biustanly  is  tin;  rofusal  ol'  tlio  putative  father 
to  givo  bon<l  for  tlio  support  of  the  child.  A  prosecution  for  Lastardy 
is  a  srecicri  of  protective  measure  to  i)revent  couutios  becoming;  cluirge- 
able  with  pauper  bastards.  Therefore,  the  county  to  wliich  the  l)astard 
is  likely  to  Imhouig  chargeable  has  jurisdiction  of  a  bastaidy  case,  and 
not  the  county  in  which  the  child  was  begotten  or  born. 

Before  Judge  Sneed.    ^McDuflie  Superior  Court. 

Thos.  E.  Watson  and  Jlarrlmn  <&  Pecj^les,  for  plaintiff  in 
orror. 

Boijl'hx  Wriff/it,  solicitor-general,  by  F".  L.  Haralson,  for 
defendant. 


SiMOKU,  TttsTirK.     On  the  ?,0[\\  Se])tembor,  ISSO,  Mamie  "Will- 
iams nuide  allidavit   before  W.  ().   Morreli,  a  justice  of  the 
peace  of  McDulHe  county,  charging  tiie  defendant  in  erior  with 
Vol.  IV  — .-) 


66 


AMERICAN  CRIMINAL  REPORTS. 


being  the  father  of  her  bastard  child,  born  on  the  2Gth  April, 
1880,  and  that  said  child  was  lilcely  to  become  chargcnible  to 
Taliaferro  county.  A  warrant  was  issued  on  said  affidavit,  the 
defendant  was  arrested,  and  he  was  recognized  to  appear  at 
the  county  court  of  jIcDuffle  county.  Said  county  court,  on 
his  refusal  (after  a  hearing)  to  give  bond  for  the  supjwrt  of  said 
child,  required  him  to  give  bond  and  security  for  his  appear- 
ance at  the  next  term  of  the  superior  court  of  McDufRo  county. 
At  said  term  an  indictment  was  had  against  defendant  charg- 
ing him  with  "being  the  father  of  the  bastard  child,  which 
was  begotten  in  McDulfie  county,  but  born  in  Taliaferro 
count}';  and  the  said  child  was  then  and  there  living,  and  of 
the  age  of  five  months,  and  it  was  probable  would  become 
chargeable  to  the  county  of  Taliaferro,  and  defendant  refused 
and  failed  to  give  bond  and  security  for  the  maintenance  and 
education  of  such  child  (he,  the  defendant,  being  then  and  there 
in  the  county  of  McDuIHe),  in  terms  of  the  law." 

The  defendant,  on  being  arraigned,  pleaded  to  the  jurisdic- 
tion of  the  court,  alleging  that  the  charge  as  set  forth  gave 
jurisdiction  to  the  county  of  Taliaferro,  which  plea  on  demurrer 
was  disallowed  by  the  court,  and  defendant  excepted. 

Under  the  evidence  and  charge  of  the  court  the  defendant 
was  found  guilty,  Avhereupon  he  made  a  motion  for  a  new 
trial,  wliich  was  overruled  by  the  court,  and  defendant  ex- 
cepted. 

Under  our  view  of  the  case,  we  do  not  consider  it  necessary 
to  notice  the  other  grounds  of  alleged  error  set  forth  in  the 
record,  save  the  question  of  jurisdiction  raised  by  the  })lea  of 
defendant  The  indictment  charged  that  the  child  was  bo- 
gotten  in  McDuffie,  born  in  Taliaferro,  and  was  likely  to 
become  chargeable  to  the  county  of  Taliaferro.  The  indict- 
ment was  found  and  trial  had  in  McDuflie  county.  In  an 
indictment  for  bastardy  the  gist  of  the  olfense  is  the  refusal  or 
failure  on  the  part  of  the  alleged  fatiicr  to  give  the  bc^ul  and 
security  to  support  the  child  sworn  to  be  his.  58  Ga.,  1U7.  In 
the  case  of  Davis  v.  The  State,  58  Ga.,  171,  Davis  was  in- 
dicted for  the  offense  of  bastardy,  in  the  county  of  Webster, 
charged  with  being  the  father  of  two  bastard  cliildren,  one 
born  and  the  other  to  be  born,  the  one  already  and  the  other 
likely  to  become  chargeal)le  to  the  county  of  AVebster.    Tlio 


WILLIAMS  t'.  THE  STATE. 


67 


evidence  shows  that  one  of  the  cliiklren  was  begotten  in  Web- 
ster county  and  born  in  Terrell,  and  the  other  child  was  be- 
gotten in  Terrell  county  and  born  in  Webster  county.  The 
court  said :  "  The  question  in  the  case  was  not  Avhere  the  chil- 
dren were  begotten,  nor  Avhere  they  Avere  born,  but  the  ques- 
tion was,  AVere  the  children  born  and  likely  to  become  charge- 
able to  Webster  county?  Was  the  defendant  the  father  of 
them,  and  did  he  fail  or  refuse  to  give  the  bond  and  security 
when  required  in  terms  of  the  law,  for  their  maintenance  and 
support  in  the  county  of  Webster  ? " 

So  in  this  case,  it  docs  not  matter  where  the  child  was  be- 
gotten or  born,  but  in  Avhat  county  was  it  likely  to  become 
cliargcable  as  a  bastard  ?  This  is  the  county  to  protect  by  the 
indictment  and  trial  of  tlie  olfunder.  The  great  object  of  such 
an  indictment  is  to  protect  the  county  from  the  support  and 
maintenance  of  a  pauper  bastard,  or  one  who  is  likely  to  be- 
come chargeable  as  such.  The  object  sought,  primarily,  is  not 
to  punish  tlio  olfender  so  much  as  it  is  to  provide  for  such  a 
cliild  that  is  or  may  become  cliargcable.  This  is  sought  to 
be  done  by  indictment  when  the  father  refuses.  Where  should 
this  indictment  be  had?  In  the  county  sought  to  be  protected, 
and  where  the  burtlicn  is  likely  to  fall.  Each  county,  under 
tlie  law,  is  to  provide  for  its  poor,  and  this  is  one  mode  of  pro- 
viding for  this  class  of  its  ])oor  —  by  compelling  the  father  to 
do  so.  On  a  conviction  had  for  this  offense,  the  law  provides 
"  tliat  the  line  shall  be  paid  over  to  the  ordinary  of  the  county, 
to  be  by  him  improved  and  applied  from  time  to  time,  as  occor 
sion  may  require,  for  the  maintenance  and  education  of  such 
ciiild  or  chihlren."  Our  conclusitm  then  is,  the  indictment  and 
trial  must  be  ha<l  in  the  county  where  the  child  is  likely  to  be- 
come chargeable,  and  that  an  indictment  cannot  be  maintained, 
tiled  in  one  county,  that  alleges  the  bastard  is  likely  to  become 
chargeable  in  another  county. 

By  what  authority  does  the  county  of  ]\[cT)ufHe  assume  to 
protect  the  county  of  Taliaferro  from  the  cxi)cnse  of  a  bastard 
likely  to  become  chargeable  to  tlu;  latter  county  ?  Why  should 
the  county  of  A[cl)ullie  bo  taxed  with  the  costs  and  ex|)ense3 
ot  ;i  prosecution  which  is  to  inure  solely  to  the  benefit  of  Talitir 
fcrro  county?  Sn(!h  an  interference  with  the  regulations  of 
another  county,  anl  such  assumed  guardianship  of  its  interest, 


^ 


63 


AilERICAN  CRIMINAL  REPORTa 


if  not  deemed  to  be  officious,  we  must  hold  to  bo  at  least  un- 
warranted in  law. 

Wo  think,  thevctore,  the  court  erred  in  not  sustaining  the 
plea  filed  to  the  jiirisdicticju.  and,  as  a  consequence,  erred  in  not 
granting-  a  new  trial  on  this  ground. 

Let  the  judgment  of  tlio  court  below  be  reversed. 

Note.— Defendant  will  not  be  pprrnitted  to  show  that  the  plaintiff  had 
sexual  intercourse  with  otliers  outside  of  the  time  witliin  which,  according 
to  the  cciurse  of  nature,  the  child  could  have  been  begotten.  Kniijht  V. 
Morse,  51  Vt.,  432;  Sterling  v.  HUrUiirj,  41  Vt.,  SO. 


The  State  v.  Goxce. 

(79  Mo.,  COO.) 

Bigamy:  Indictment  —  Evidence. 

X.  Indictment. — An  indictment  for  bigamy  drawn  in  the  language  of  tho 
statute  is  sufficient. 

8.  :  Evidence. —  On  a  trial  for  bigamy,  the  state,  to  prove  the  first  mar^ 

riage,  gave  evidence  tliat  defendant  and  the  woman  lived  together  and 
held  themselves  out  to  the  world  as  man  and  wife  for  j'cars;  that  they 
Lad  a  family  of  children  living  with  them  as  their  children;  that  sho 
had  signed  and  acknowledged  deeds  as  his  wife;  and  that  after  the 
bigamous  marriage  she  had  sued  for  .•.  divnice,  he  had  answered,  and 
the  court  had  granted  her  a  divorce.  Held,  that  tliia  evidence  was  all 
competent. 

8.  Parol  evidence  is  admissible  to  show  that  a  paper  offered  as  a  certified 
copy  of  a  decree  is  a  forgevy. 

4.  Reason ADLE  doubt.— In  every  criminal  case  the  defendant  is  entitled  to 
an  instruction  as  to  reasonable  doubt;  and  it  is  error  for  the  court  to  re- 
fuse it,  no  matter  how  cleai'  the  evitlence  may  K"em  against  him. 

Appeal  from  Stone  Circuit  Court.  Hon.  W.  F.  Geigcr, 
Judge. 

Davis  <&  ITefernan^  for  appellirnt. 

D.  II.  2feJntyre,  attorney -general,  for  the  state. 

EwiNo,  C.  In  1870  the  appellant  was  indicted  for  bigamy 
In  Stone  county,  was  convicted  and  sentenced  to  imprisonment 
in  tho  penitentiary  for  two  years.  He  brings  the  case  here 
and  asks  its  reversal :  1st.  Because  tho  indictment  is  insuifi- 
cient.  '2d.  Because  the  court  admitted  incompetent  evidence. 
fid.  Because  the  court  gave  and  refused  improper  instructions. 

I.  The  indictment  is  sufficient.     It  charges  the  ollense  spe- 


riiE  STATE  V.  GONCE. 


cifically  in  the  Irmguago  of  the  Rtatuto.  It  contains  all  tho 
elements  necessary  to  constitute  a  valid  indictment  for  bigamy, 
"  The  grand  jurors  for  the  state  of  ]\lissouri,  summoned  from 
the  botly  of  Stone  county,  impaneled,  charged  and  sworn,  upon 
their  oaths  present  that  Abraham  K.  Gonce,  late  of  tho  county 
aforesaid,  on  the  10th  day  of  April,  1877,  at  the  county  of 
Stone  aforesaid,  did,  unlawfully  and  feloniousl}',  marry  and 
take  to  wife,  one  Martha  Ann  Keithley,  and  to  her,  tho  said 
Martlia  Ann  Keithley,  was  then  and  there  married ;  lie,  tho 
said  Abraham  R.  Gonce,  then  and  there  having  a  Avifo  liv- 
ing, to  V,  it :  JSlary  A.  Gonce ;  against  the  peace  and  dignity  of 
the  state."  2  Arch,  Crim.  Plead,  and  Prac,  p.  181!),  Poni- 
croy's  notes ;  Commonwealth  v.  Jcnnin(js,  121  !Mass.,  47 ;  S.  C, 
23  Am.  Rep.,  219. 

II.  The  evidence  of  tho  first  marriage  consisted  of  livi.^g 
together  and  holding  out  to  (lie  world  the  relation  of  man  and 
wife  for  years;  that  defendant  called  Mary  A.  Gonce  his  wifo 
and  treated  her  as  such  ;  had  a  family  of  children  living  with 
them  as  their  children  ;  also  tending  to  prove  that  the  woman 
had  signed  and  aclcnowledged  deeds  as  his  wife;  alio  i-ccorda 
of  Olu'istian  county,  sliowing  a  petition  for  divorce  by  Mary 
A.  Gonce  against  A.  11.  Gonce,  his  answer  thereto,  and  tliD 
judgment  of  the  court  granting  the  prayer  of  the  petition  in 
September,  1878.  Cai-(j!le  v.  Wood,  OIJ  ]\Io.,  513  ;  11  Me.,  391 ; 
State  V.  McDoiurld,  25  Mo.,  17<>.  Tiie  proof  of  the  second 
marriage  was  by  the  minister  who  solemnized  it  on  the  10th 
day  of  April,  1877,  and  al>;o  tlie  record  of  the  marriage  certifi- 
cate. 

Tlie  defendant  offered  a  copy  of  a  decree  of  divorce  of  a 
Kentucky  court,  dated  in  I8r)7,  of  A.  II.  Gonce  against  Mary 
A.  Gonce,  whicli  was  not  certified  as  tho  law  directs  (R.  S., 
1S7i>,  ^  2321),  and  was  not  com]vtent  evidonce.  but  it  was 
introduced  witliout  objection  on  the  part  of  the  i»n>secution. 
In  rebuttal  tiiereof  the  state  called  various  witnesses,  wlu»se  ov'^ 
dence  very  strongly  tendinl  to  prove  that  this  pretended  n^conl 
and  clerk's  certill<'ate  were  in  the  handwriting  of  the  defend- 
ant. To  this  evidence  the  defendant  objivted.  There  is  nj 
ol)jecti<m  to  this  evidence.  W barton,  Crim.  Ev.  (Sth  ed.\ 
^ji  .">52,  5.'')3.  There  was  no  contradiction  here  of  a  vecord  of  a 
court.     If  a  genuine  record,  its  contents  cannot  be  changed  o> 


YO 


AMERICAN  CRIMINAL  REPORTS. 


modifu  d  by  parol.  But  any  evidence  is  admissible  to  show,  or 
that  tends  to  show,  it  is  a  fraud ;  that  it  is,  in  fact,  not  a  record, 
but  a  forgciy.  Thorn  v.  lamrmxce  Co.^  SO  Pa.  St.,  15 ;  S.  C, 
21  Am.  Rep.,  89 ;  Lowry  v.  McMillan,  8  Pa.  St.,  lOi ;  Wharton, 
Crim.  Ev.,  §  595. 

III.  Tlie  instructions  given  on  the  part  of  the  state  were 
substantially  correct,  and  defendant  was  not  injured  by  iliem. 
But  the  defendant  asked  the  court  to  declare  the  law  in  his  be- 
half as  follows  :  "  The  burden  of  proof  to  establish  the  guilt 
of  defendant  devolves  upon  the  state,  and  the  law  clothes  him 
with  a  presumption  of  innocence  which  attends  and  protects 
him  until  it  is  overcome  by  testimony  wliich  proves  his  guilt 
beyond  a  reasonable  doubt.  By  a  reasonable  doubt  is  meant 
a  substantial  doubt,  based  upon  the  evidence  or  want  of  evi- 
dence in  the  case,  ar^d  not  a  bare  possibility  of  defendant's 
innocence."  This  instruction  should  have  been  given.  It  is 
the  law  in  all  criminal  cases.  That  part  of  the  instruction  as 
to  a  reasonable  doubt  is  usually  asked  and  given  on  the  part  of 
the  state,  delining  what  is  meant  by  a  reasonable  doubt.  But 
even  though  it  may  appear  to  the  court  there  can  bo  no 
grounds  for  a  rcat;onable  doubt,  yet  the  accused  must  have  the 
opinion  of  the  triers  of  the  fact  upon  that  question.  This  in- 
struction should  have  been  given  for  the  defendant,  and  the 
court  committed  error  in  refusing  it. 

The  judgmen':  must,  therefore,  be  reversed  and  the  case  re- 
manded ;  the  other  commissioners  concurring. 


Note.—  Evidence  of  fimt  viarriagc.  On  fin  indictment  for  bigamy,  tho 
first  marriage  may  bo  proved  by  tlie  admissions  of  tlio  jn-isoner;  and  it  is 
for  the  jury  to  determine  wlietlier  wliat  ho  said  was  an  admission  tiiat  lio 
had  been  legally  married  according  to  the  laws  of  the  country  where  tlio 
marriage  was  solemnized.  Miles  v.  United  States,  103  U.  S. ,  304,  and  cases 
cited. 

As  long  as  the  fact  of  his  first  marriage  is  contested,  the  second  wife  is  an 
incompetent  witness.  Miles  v.  United  Slates,  supra.  In  Leg.  v.  Willshirc, 
14  Cox,  C.  C,  Ml,  it  appeared  that  tho  jtrisoner  in  1804  married  E.  In  18G8 
prisoner  was  indicted  and  convicted  for  marrying  A.,  E.,  his  wife,  being 
then  alive.    In  187i)  prisoner  married  B.,  and  in  1830  he  married  C. 

Prisoner  was  indicted  for  marrying  C.  in  1880,  his  wife  B.  alleged  to  be 
then  alive,  and  upon  the  trial  the  prisoner  proved  by  a  witness  and  the  jiro- 
duction  of  the  record,  that  in  1808  his  first  wife,  E.,  was  then  alive.  The 
judge,  at  the  trial,  ruled  that  this  was  no  evidence  tiiat  E.  was  alive  in  1879 
when  the  prisoner  mai-ried  B.,  and  that  the  prisoner  was  bound  to  show 


WATSON  V.  STATE. 


71 


tlifit  E.  was  alive  in  1879  to  entitle  him  to  an  acquittal.  Ileld,  on  appeal, 
that  tlio  qiu'stion  was  one  for  the  jury  wliotlior  E.  was  alive  or  dead  in  1879, 
at  tlic  time  of  the  last  marriage,  and  that  the  conflicting  presumptions  of 
the  continuance  of  the  life  of  E.,  after  1808,  there  being  no  evidence  to  the 
contrary,  and  of  the  i>risoner  being  innocent  and  free  to  contract  the  mar- 
riage in  1879,  wore  evidence  for  the  jury  to  consider  in  determining  the 
question. 

Jiiritidiction  of  the  offense.  The  Missouri  statute  provides  that  "every 
person,  liaving  a  husban<l  or  wife  living,  who  shall  marry  another  person 
without  this  state,  in  any  case  where  such  marriage  would  be  punisliable  if 
contracted  or  solemnized  within  this  state,  and  shall  afterward  cohabit  with 
such  person  within  tliis  state,  shall  be  adjudged  guilty  of  bigamy,  and  pun- 
ishetl  in  the  same  manner  as  if  the  second  marriage  had  taken  place  within 
this  state."  And  in  State  v.  Fitzgerald,  75  Mo.,  571,  it  was  held  that  cohab- 
itation within  the  state,  by  persons  unlawfully  married,  does  not  of  itself 
constitute  the  commission  of  tlie  crime  of  bigamy  in  the  county  where  such 
cohabitation  took  place,  unless  the  second  unlawful  marriage  was  con- 
tracted or  solemnized  without  the  state;  that  when  such  second  unlawful 
marriage  was  contracted  within  tlie  state,  the  offense  was  cognizable  only 
in  the  courts  of  the  county  where  it  was  contracted. 

The  Iowa  statute  provides  that  "  if  any  person  who  has  a  former  husband 
or  wife  living,  mairy  anotlier  person,  or  continue  to  cohabit  with  such 
second  Inisbund  or  wife  in  tliis  state,  he  or  she,  except,"  etc.,  "shall  be 
guilty  of  bigamy,"  etc.  And  in  Tlie  State  v.  Iliiglies,  58  Iowa,  105,  it  was  held 
tliat  a  i)er.son  may  be  indicted  for  bigamy  in  the  county  where  the  unlawful 
mai'riage  took  place  or  in  any  county  where  he  cohabited  under  the  uiarriage. 


"Watsox  V.  State. 

(;]9  Ohio  St.,  123.) 

BniBEnT:  Indictment  —  DiqMcity  —  Instrudion — Vahie. 

1.  Tndictmknt  not  bad  for  unckutaintv.— An  indictment,  under  section 

0900,  Revised  Statutes,  which  charges  that  defendant  corniptly  offered 
and  promised  to  B.,  a  member  of  tlie  house  of  representatives  of  the 
general  assend)ly  of  tlie  state,  with  the  intent  to  corruptly  and  feloni- 
ously influence  iiis  vote  uijon  a  certain  bill  then  jiending  in  such  house, 
"a  valuable  thing,  to  wit:  stock  of  ihe  Cincinnati  Union  Railway 
Company,  of  the  amoiuit  and  value  of  ij!  0,000,  and  a  large  amount  of 
money,  of  great  value,"  is  not  bad  for  unc  ^rtainty.  It  is  not  necessary, 
in  addition  to  such  allegation,  to  recite  the  facts  which  give  the  thing 
olfcred  a  value,  nor  to  charge  that  a  definite  sum  of  money  was  offered. 

2.  Same  — That  dkfkndant  was  a  memheu  or  the  house.— A  single  count 

in  such  indictment,  which  charged  that  B.  was  a  member  of  the  house, 
and  also  a  member  of  a  standing  committee  of  such  house  to  which  the 
bill  was  referred,  and  that  the  offer  or  promise  was  made  to  influence 
his  vote  therefor  in  the  house,  and  his  vote  for  a  favorable  report  thereon 


72  AMERICAN  CRIMINAL  REPORTS. 

in  tho  comniittoo,  is  not  bad  for  duplicity.  Tho  charge  thus  m.idc  con- 
stitutosi  but  one  ofTon^io  under  the  statute. 
8.  iNSTiiccTioN  AS  TO  VALUE  OF  THING  oFi •EUKD.— To charRO tho  .iiuy,  in  a 
trial  upon  bucIi  inilictment,  that  the  thing  offered  or  promised  must 
have  a  value  at  the  very  time  it  is  oilered  or  promised,  and  while  tho 
bill  is  peiuiiiig,  is  error,  but  not  to  tho  prejudice  of  the  defendant.  It  is 
a  crime,  under  section  0900,  to  offeror  jironiisea  thing  valuable  at  that 
time,  cr  which  will  be  valuable  when,  according  to  tho  promise,  it  Ls  to 
be  given  or  delivered. 

Dov:.!-,  J.  "Watson  was  indicted,  under  section  0900  of  the 
Revised  Statutes,  for  offering  a  bribe  to  a  member  of  the  house 
of  rei)ie;entatives,  to  inlluence  his  vote  upon  a  bill  then  pond- 
ing in  said  house.  The  indictment  contains  two  counts.  Tho 
first  count  charged,  in  substance,  that  tho  defendant  on  tho 
23d  of  March,  1SS3,  during  tlio  pendency  before  said  house 
of  a  bill  "Providing  for  the  extension  of  the  Miami  and  Erio 
canal,  and  building  and  maintaining  a  railway  through  tho 
city  of  Cincinnati,"  known  as  Iiouse  bill  No,  209,  to  corruptly 
influence  one  William  Bloch,  a  member,  etc.,  to  vote  for  said 
bill,  did  corruptly  olferand  promise  to  said  Bloch  "a  valuable 
thing,  to  wit:  stock  of  the  Cincinnati  Union  Railway  Com- 
pany, of  the  amount  and  value  of  .320,000,  and  a  largo  amount 
of  money  of  great  value." 

Tli'e  second  count  charged  that  JJloch  Avas  also  a  mem- 
ber of  the  standing  committee  of  the  house  on  public  works, 
to  which  committee  the  bill  aforesaid  was  referred.  And  that 
for  the  purpose  of  influencing  him  as  a  member  of  the  house 
to  vote  for  the  bill,  and  as  member  of  the  committee  to  vote 
for  a  favorable  report  on  the  bill,  did  corruptly  offer  and 
promise,  etc.,  repeating  the  offer  in  the  language  already  quoted 
from  the  first  count. 

At  the  January  term,  1SS3,  of  the  court  of  common  jileas  of 
Franklin  county,  the  defendant  was  tried  and  convicted  on  both 
counts  of  the  indictment.  A  motion  for  a  new  trial  was  made 
and  oviMTuled,  and  the  defendant  sentenced  to  a  term  in  tho 
penitentiary.  He  thereupon  filed  in  this  court  a  motion  for 
leave  to  lile  a  petition  in  error,  to  procure  a  reversal  of  that 
judgment.  During  the  progress  of  the  case  after  tho  indict- 
ment, the  defendant  filed  in  the  order  named,  a  motion  to 
quash,  a  demurrer  to  each  count  of  tho  indictment,  and  a  mo- 
tion to  require  the  state  to  elect,  under  the  second  count  of  the 


WATSON  V.  STATE. 


IS 


indictincut,  which  oiTcnse  it  wouhl proceed  upon,  assuming  that 
two  distinct  oircnscs  were  therein  charged,  each  of  wliich  was, 
at  the  projjcr  time,  overruled  by  the  court,  and  exceptions 
talcon  by  said  derenchmt. 

Tlic30  several  ralings  and  orders  of  the  court  arc  alleged  to 
be  eri'or,  and  will  be  considered  together,  as  each  of  said  mo- 
tions and  demurrers  Avas  intended  to  present  the  question  as  to 
the  si'.lliciency  of  the  indictment. 

1.  It  is  claimed  that  the  second  count  of  the  indictment  is 
l):i(l  for  duplicity;  that  it  cliarges  separate  and  distinct  oU'enscs. 
That  iittempting  to  bribe  a  member  of  a  legislative  committee 
as  to  his  action  as  such,  was  an  olfenso  at  common  law,  and 
tliat,  as  tlie  indictment  charges  that  this  bill  Xo.  209  was,  at 
the  date  alleged,  in  the  committee,  an  ofl'er  to  bribe  him  as 
such  committeeman  is  a  diU'erent  oll'ense  from  an  offer  tobribo 
hiiu  as  a  member  of  the  house.  Hence,  it  is  urged,  the  two 
oH'cnses,  both  being  indictable  at  common  law,  cannot  bo 
cliarged  in  one  count. 

Conceding  that  these  acts  constituted  distinct  offenses  at 
connnon  law,  the  logishiturc  has  the  power  to  make  them  ono 
offense  by  statute.  As  v/e  have  no  common  law  crimes  in 
Ohio,  tlie  inquiry  is.  Are  there  two  crimes,  made  such  by  stat- 
ute, charged  in  this  count  of  tlio  indictment^ 

The  provision  of  the  statute,  §  Ol)i)0,  R.  S.,  is  as  follows: 
"Whoever  corruptly  gives,  promises  or  offers  to  any  member 
ov  ollicer  of  the  general  ass(imbly,  or  of  either  house  thereof, 
.  .  .  either  before  or  after  his  election,  qualillcatiou  or  ap- 
pointment, any  valuable  thing  ...  to  inlluence  him  with 
rei'.poct  to  his  ollicial  duty,  or  to  influence  his  action,  vote,  opin- 
ion or  judgment  in  any  matter  pending  or  that  might  legally 
come  before  him,"  etc. 

What  is  charged  in  this  second  coimt  is  that  the  offer  was 
made  to  Bloch,  a  membcu'  of  the  house,  and  also  a  member  of 
the  committee  of  such  house,  to  induce  him  to  vote  for  the  bill 
aiul  to  vote  for  a  favorable  report  in  the  committee.  AVithin 
the  meaning  of  this  statute  the  meml)er  does  not  occupy  tho 
dual  character  claimed  for  him.  What  he  does  in  committee  ho 
does  as  a  represi^ntativc,  the  committee  being  but  a  subdivision 
of  the  legishitive  body  for  certain  j)urposes.  among  which  is 
that  of  examining  hills  and  repoi'ting  to  the  whole  body  upon 


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74 


AMERICAN  CRIMINAL  REPORTS. 


their  merits.  To  attempt  by  a  bribe  to  influence  his  vote  upon 
a  pending  bill,  either  in  tlie  committee  of  which  he  is  a  mem- 
ber, or  in  the  house  when  the  bill  is  put  to  a  vote,  is  a  crime 
under  this  statute.  To  allege  eitlier,  without  the  other,  would 
be  good.  To  allege  the  bribe  was  ollered  to  induce  the  member 
to  do  both  is  certainly  good. 

2.  It  is  further  urged  that  the  indictment  does  not  sufR- 
ciently  charge  that  anything  of  value  was  offered,  because  it  is 
not  cliargcd  that  the  Cincinnati  Union  Eailway  Company  was, 
when  the  offer  was  made,  legally  incorporated  oi:  authorized 
to  issue  stock,  nor  any  fact  which  imported  present  value  to 
such  stock;  nor,  it  is  said,  is  it  charged  that  any  si)ecillc 
amount  of  money,  having  a  value  expressed  by  a  sum  certain, 
was  offered;  the  term  "a  iai-gc  amount  of  money  of  great 
value  "  being  too  indefinite  for  good  pleading.  AVe  think  the 
objection  is  not  Avell  taken.  It  is  not  necessary  to  allege  or 
prove  the  quantity  of  value,  where  that  is  not  an  essential  cle- 
ment of  the  crime.  Under  the  statute  it  is  not  material  whether 
the  value  of  the  thing  offered  is  great  or  small,  if  it  is  in  fact 
valuable.  To  offer  $1  for  the  corrupt  purpose-  of  ii  llucncing 
the  vote  of  a  legishitor  is  as  complete  an  offenso  as  to  offer 
$100.  Money  necessarily  imports  value.  Tlic  term  "any- 
thing of  value"  includes  money,  in  this  state,  by  express 
statutory  provision.  R  S.,  §  OTOJ:.  Hence,  the  distinction 
does  not  exist  here,  which  is  found  in  some  states,  botweeu  "a 
thing  of  value  "  and  "  money  "  in  an  indictment.  IJcudiiig  these 
two  sections  of  the  Revised  Statutes  together,  and  testing 
thereby  this  part  of  the  offer,  the  result  is  the  same  as  if  §  iVMO 
read:  "Whoever  corruptly  offers  any  money."  The  rei|uiro- 
ments  of  the  statute,  to  constitute  the  crime,  are  fully  met  by 
allegation  and  proof  that  the  defendant  olTercd  a  large  sum  of 
money.  A  promise  or  offer  in  just  that  language,  without 
naming  any  definite  sum,  with  the  corrupt  purpose  of  in  llucnc- 
ing the  vote  of  the  member,  would  bo  a  crime  under  this  stat- 
ute, and  the  indictment  need  not  charge  more. 

We  will  consider  the  offer  of  the  stock  when  wo  como  to 
treat  of  the  charge  of  the  court. 

3.  Upon  the  trial,  and  before  the  close  of  the  argument,  the 
defendant  asked  the  court  to  chai'ge  the  jury  as  follows : 

"  The  jury,  bef.ire  they  can  convict  the  defendant,  must  find 


that  aboil 
to  corrup 
of  Wiliiai 
offer  him 
you  musi 
antl  that 
if  there  \ 
sustain  tl 
fondant, ; 
Bloch  a 
offers,  or 
WJ's  actui 

Tills  cl 
jury  that 
was  a  ])rc 
controUii 
this  bill ; 
Avas  proir 
was  of  s? 
little  it  1 
timo  of  tl 
that  you 
timo  it  w 

The  re; 
sitions,  ' 
a  spesilio 
pending  1 
claim  ma 
tlio  house 
of.  As  a 
quest,  wli 
refused, 
that  llief 
time  it  w 
language 
error,  tlu^ 
ant;  it  w 
evil  of  til 
uni)rovi(l 
forms  of 


WATSON  V.  STATE. 


75 


that  about  the  23d  of  March,  1882,  the  defendant,  with  intent 
to  corruptly  influence  the  vote,  opinion,  judgment  and  action 
of  William  Bloch  as  a  member  of  tlie  general  assembly,  did 
olTer  him  stock  of  Cincinnati  Union  Railway  Company,  and 
you  must  further  find  that  there  was  suc'.i  stock  in  existence, 
and  that  it  had  some  value ;  or  if  there  was  no  such  stock,  or 
if  thoi-e  was  such  stock  and  it  had  no  value,  then,  in  order  to 
sustain  the  indictment  and  warrant  a  conviction  of  the  do- 
fuiulaut,  you  must  find  that  the  defendant  olferod  to  William 
Bloch  a  spociliod  or  delinite  sum  of  money,  and  that  such 
offers,  or  one  of  them,  were  made  while  house  bill  No.  209 
W!'s  actually  pending  bofoi-e  the  house  of  representatives." 

Tliis  charge  the  court  rofusctl  to  give,  but  did  ciiarge  the 
jury  that  "  the  state,  in  order  to  convict,  must  show  that  there 
was  a  ])romiso  or  offer  made  to  said  Bloch  for  the  purpose  of 
controlling  or  influencing  his  vote  and  legisk.tive  action  upon 
this  bill ;  and  it  must  further  show,  if  you  iind  that  anything 
was  pi'omiscd  oi*  olfored,  that  the  thing  promised  or  offered 
was  of  some  value.  It  docs  not  matter  how  much  or  how 
littlo  it  may  have  been,  but  it  must  bo  of  some  value  at  the 
tinn  of  the  promise  or  offer."  And  again,  "  I  will  charge  you 
that  you  must  find  that  the  thing  offered  had  a  value  at  the 
tinio  it  was  so  offeredj  and  the  bill  ponding." 

The  re:piest  of  the  defendant  containeil  three  distinct  propo- 
sitions. Two  of  them,  vi/..,  tliat  the  offer  of  money  must  be 
a  s[)e3iliod  and  definite  sum,  and  that  the  bill  must  be  actually 
pending  before  tlie  house,  hy  which  was  meant  (in  view  of  the 
claim  made  thereon  by  defendant's  counsel  on  the  trial)  before 
the  house,  and  not  in  the  committee,  we  have  already  disposed 
of.  As  all  of  the  propositions  were  contained  in  a  single  re- 
quest, which,  in  these  respects,  was  erroneous,  it  was  properly 
refused.  The  third  proposition  in  defendant's  request,  vi/., 
that  (ho  stock  or  thing  offered  must  have  a  value  at  the  very 
time  it  was  offered,  was  given  by  the  court  in  much  stronger 
language  than  tliat  contained  in  the  re(piest.  There  was  no 
error,  therefore,  in  the  charge  to  the  prejudice  of  the  defend- 
ant; it  was  much  more  favorable  to  him  than  the  law  is.  Tiio 
evil  of  the  charge  is,  that  it  so  construes  the  statute  as  to  leave 
unprovided  for,  and  allow  to  go  unpunished,  the  very  worst 
forms  of  bribery. 


76 


AMERICAN  CRimNAL  REPORTS. 


It  was  proved  on  the  trial  that  the  organization  of  the  Cincin- 
nati Union  Railway  Company  had  not  boon  legally  porfectcd  as 
provided  by  section  3211  of  the  Revised  Statutes,  and  henco 
its  stock  had  not  yet  been  legally  issued.  The  effect  of  the 
charge  given,  tlierefore,  was  practically  to  take  this  part  of  the 
case  from  tlio  consideration  of  the  jury.  Bat  the  proposition 
to  a  legislator,  in  a  case  of  this  kind,  may  be,  in  effect,  that  if 
he  will  use  Lis  influence  and  vote,  as  a  representative  and  coni- 
mittcoman,  to  obtain  a  grant  of  a  valuable  franchise  from  the 
state,  he  sliall  be  paid  therefor  a  part  of  the  grant,  or  that 
which  represents  a  part  of  the  grant,  to  wit,  stock  in  the  com- 
pany incorporated  to  receive  the  gi*ant;  a  very  dangerous 
species  of  bribery,  although  such  stock  may  not  at  the  time  of 
the  promise  be  in  existence. 

The  offer  in  this  case,  if  it  was  made,  to  give  stock  in  this 
company  to  the  amount  and  of  the  value  of  $20,0:)0,  involved 
a  promir^e  that  at  the  time  of  delivery  it  should  be  legal  stock 
and  valuable.  To  offer  or  promise  to  give  a  thing,  and,  in 
connection  therewith,  to  promise  to  do  some  act  before  the 
time  the  thing  is  to  be  given,  Aviiich  will  give  it  value,  or  to 
offer  a  thing  in  the  future  whicli,  at  tlie  time  agreed  upon  for 
delivery,  will  hav^e  a  valu'o,  is  to  offer  a  valuable  thing. 

Suppose  tliere  was  nothing  illegal  or  improper  in  the  contract 
proposed  in  this  case,  but  it  could  be  enforced  as  any  other 
valid  contract  in  an  action  by  Eloch  agninst  defendant  for  the 
contract  price  for  his  services,  alleging  that  it  had  been  entered 
into  and  fully  performed  by  him.  AVould  it  be  any  defense  to 
say:  "True,  I  promised  you  stock  in  the  railway  company,  not 
only  to  the  amount  but  of  the  value  of  $20,000;  but  the  com- 
pany was  not  then  legally  organized,  and  its  stock  then  liad  no 
value;  hence  I  did  not  agree  to  pay  you  any  tiling  of  value?" 
Would  he  not  rather  be  held  to  have  agreed  that  when  the  time 
of  performance  on  his  part  arrived,  there  should  be  such  stock 
legally  issued,  and  that  it  would  be  of  the  value  named,  and 
upon  his  failure  to  fulfd  such  agreement  be  lial)le  to  a  judg- 
ment? 

This  statute,  like  other  criminal  statutes,  must  be  strictly 
construed,  so  that  no  act  shall  be  hold  under  it  to  be  a  crime 
not  within  its  letter;  but  it  must  also  bo  reasonably  construed, 
and  the  words  used  in  it  be  given  their  fair  import  and  mean- 


ing. The 
would  ])er 
was  rocor( 
isor  wouk 
procure  A 
for  the  ca] 
the  projec 
or  give  hi: 
out  of  so 
thereby  t( 
thing  offo 
it  may  be 
ered,  and  1 
have  its  c 
l)i'ibcry. 

AVhen  t 
promising 
when  it  is 
of  the  off( 

4.  It  is 
mony.  "\^ 
termining 
amended  . 
sections  4 
prohibits 
fore  the  p: 
its  place  < 
of  the  sec 


Note.—  Ii 
for  cnil)czzl( 
the  corpora 
owner  of  th 
law  should  1 
there  is  a  in 
the  officer  o 


WATSON  V.  STATE.  ff 

ing.  The  construction  given  to  it  by  the  court  in  this  charge 
would  ])erinit  a  man  to  promise  a  legislator  that  after,  his  vote 
WHS  recorded  a  p;ivticular  way  upon  a  pending  bill,  the  prom- 
isor -would  execute  to  him  a  negotiable  promissory  note,  or 
procure  A.  or  V>.  to  execute  and  deliver  sucli  note,  or  subscribe 
for  the  capital  stock  of  a  corporation,  which  the  promoters  of 
the  project  were  about  to  organize,  and  deliver  him  such  stock 
or  give  liim  a  poi'tion  or  jiercentage  of  whatever  was  realized 
out  of  some  venture,  to  be  aided  by  the  legislation  sought 
thereby  to  be  corruptly  influenced,  and  escape  liability.  Tlio 
thing  offered  must  be  a  thing  of  value;  but  of  value  when? 
It  may  be  a  thing  of  great  value  at  the  time  it  is  to  be  deliv- 
tn-ed,  and  have  no  existence  at  the  time  of  the  promise.  It  wiU 
JKive  its  evil  iulluenco  and  be  as  pernicious  as  any  form  of 
bi'ibcry. 

AVhen  this  statute,  therefore,  prohibits  giving,  offering  or 
prouiising  anything  of  value,  it  must  be  held  to  mean  of  value 
wlien  it  is  given,  offered  or  promised,  or  when,  by  the  terms 
of  the  offer  or  pi'omise,  it  is  to  be  given. 

4.  It  is  claimed  the  verdict  is  against  the  weight  of  testi- 
uiony.  "We  cannot  examine  the  record  for  the  purpose  of  de- 
termining that  question.  Section  T35G,  Revised  Statutes,  as 
aniended  April  IS,  1883,  by  the  act  entitled  "  An  act  to  amend 
sections  455,0710,0711  and  7350  of  the  Revised  Stotutes," 
prohibits  such  examination.  While  this  motion  was  filed  be- 
fore the  passage  of  that  act,  if  we  grant  it,  and  the  case  takes 
its  place  on  the  docket,  it  Avill  be  governed  by  the  provisions 

of  the  section  as  thus  amended. 

•  Ifotion  overruled. 

Note.— In  Alden  v.  TJie  State,  18  Fla.,  187,  it  is  held  on  an  indictment 
for  cnihczzlement  of  public  funds  by  an  officer,  that  the  corporate  name  of 
the  corporation  as  fixed  by  law  should  appear  in  the  indictment  as  the 
owner  of  the  funds,  and  the  name  of  ofRce  of  such  officer  as  juescribed  by 
law  shovdd  bo  truly  stated.  That  judgment  will  be  arrested  when  it  appears 
there  is  a  misnomer  in  either  the  name  of  the  corporation  or  in  the  title  of 
the  officer  of  the  corporation  so  charged  with  embezzlement. 


78, 


AMERICAN  CRIMINAL  REPORTS. 


GuTUEiE  V.  State. 

(10  Neb.,  607.) 

Bribery:  Indictment— Variance— Evidence. 

1.  Indictsient  referring  to  third  person  as  unknown.— At  common 

\a.\\ ,  in  cases  where  an  indictment  referred  to  third  parties  as  persons  to 
the  gi-and  jury  unknown,  if,  upon  the  trial,  it  was  made  to  appear  tliat 
the  grand  jury  did  know  the  names  of  the  persons  referred  to,  the  ac- 
cused would  have  to  be  acquitted  on  the  ground  of  a  variance  between 
the  allegations  of  the  indictment  and  tlie  proofs.  But  it  was  not  neces- 
sary for  the  state  to  prove  the  truth  of  the  allegation  beyond  a  reason- 
able doubt. 

2.  Same  —  Variance  not  fatal.—  The  indictment  in  this  case  alleged  that 

the  sum  of  $300  was  paid  to  plaintiff  in  error  as  a  bribe  by  one  C.  B., 
"  and  others  whose  names  ai-e  to  the  giand  jurors  unknown."  The 
proof  showed  that  the  money  was  paid  by  C.  B.  for  the  purpose  alleged 
in  the  indictment.  Held,  that  the  variance  was  not  fatal,  and  tlir.t  the 
district  court  was  justified,  under  the  provisions  of  section  413  of  the 
Criminal  Code,  in  disregai'duig  it. 
8.  Bribery  —  Evidence. —  Under  the  allegations  of  the  indictment,  and 
the  circumstances  of  the  case  as  shown  by  the  testimony,  it  was 
held  competent  for  the  state  to  prove  other  acts  of  bribery  than  those 
alleged  in  the  indictment,  for  the  purpose  of  corroborating  the  principal 
witness  upon  material  facts  involved  in  the  original  contract  of  bribery, 
and  also  for  the  purpose  of  showing  the  system,  plan  and  design  of  the 
parties  involved  in  the  transact  °   i  alleged  iu  the  indictment. 

Error  from  Douglas  County. 

C.  A.  Baldwin,  for  plaintiff. 

Isaac  Powers,  Jr.,  attorney-general,  for  defendant. 

Reese,  J.  The  plaintiff  was  indicted  by  the  grand  jury  of 
Douglas  county  for  the  crime  of  receiving  a  bribe.  Upon  trial 
he  was  convicted  and  sentenced  to  the  penitentiary.  lie  now 
prosecutes  error  in  this  court,  alleging  vai'ious  errors,  which 
will  be  noticed  in  the  order  presented  by  his  brief.  As  the 
principal  objections  made  by  plaintiff  in  error  either  apply 
directly  to  or  in  some  way  refer  to  the  allegations  of  the  indict- 
ment, Ave  quote  the  charging  part  thereof,  which  is  as  follows- 
"That  the  said  Roger  C.  Guthrie,  in  the  city  of  Omaha,"  etc., 
"  being  then  and  there  a  ministerial  ollicer,  to  wit,  the  city  mar- 
shal of  the  city  of  Omaha,  duly  and  legally  appointed,  con  firmed, 
qualified  and  sworn  to  discharge  the  duties  of  that  office,  it 
being  an  office  of  importance  and  trust  concerning  the  admin- 


GUTHRIE  V.  STATE. 


79 


istration  of  public  justice,  law  and  order  within  said  city, 
count}'^  and  state,  contriving  and  intending  the  powers  and 
duties  of  his  said  office,  and  ^  he  trust  and  confidence  thereby  re- 
posed in  him,  to  violate,  prostitute  and  betrt^y,  and  contriving 
and  intending  then  and  there  the  powers  and  duties  of  his  said 
ollice  to  discharge  and  perform  with  partiality  and  favor,  and 
contrary  to  laAv,  did  then  and  there,  Avith  the  intent  aforesaid, 
unlawfully,  knowingly,  corruptly  and  feloniously  take,  accept 
and  receive  from  Cliarles  Branch  and  others,  whose  names  are 
to  the  jurors  unknown,  the  sum  of  $300  in  money,  of  the  value 
of  $300,  as  a  bribe  and  pecuniary  reward  offered  and  given  by 
the  said  Charles  Branch  and  others,  and  by  the  said  Ilogcr  C. 
Guthrie  talcen,  accepted  and  received  with  tlie  intent  and  pur- 
pose Lo  induce  him,  the  said  Roger  C.  Guthrie,  in  his  office 
aforesaid,  to  permit,  authorize  and  allow  certain  gamblers,  to 
Avit,  Cluii'los  S.  Iliggins,  Sctli  C.  Baldwin,  Hiram  B.  Kennedy, 
Goodley  Bi'ocker,  James  Morrison,  William  Soderstron,  Charles 
Brancli  and  otlicrs  to  tlie  grand  jurors  unknoAvn,  to  keep,  use 
and  occupy  buildings  and  rooms  for  the  purpose  of  and  devoted 
to  gambling,  to  exhibit  gaming  tables,  gaming  establislnnents, 
gaming  devices,  and  other  apparatus  to  Avin  and  gain  money, 
and  to  carry  on,  conduct  and  prosecute  the  habit,  practice  and 
profession  of  gambling  in  the  corporate  limits  of  the  city 
of  Omaha,  and  to  induce  and  influence  him,  the  said  Eogcr  0. 
Guthrie,  then  and  there  and  thereafter,  not  to  arrest  nor  cause 
to  be  arrested  the  said  gamblers,  and  to  keep  and  protect  them 
from  arrest  and  punishment,  and  free,  clear  and  exempt  from 
municipal  or  police  molestation,  interference  or  attack  Avhile 
engaged  in  the  business,  ])ractice,  and  profession  of  gambling 
as  aforesaid,  in  violation  of  laAV,'"  etc. 

The  first  ])oint  presented  is  tJiat  the  indictment  charges  that 
the  contract  of  bribery  Avas  made  Avith,  and  the  money  paid  by, 
Charles  Branch,  "  and  other  persons  to  the  grand  jurors  un- 
knoAvn;"  and  no  proof  AA-as  offered  by  the  state,  on  the  trial,  to 
show  that  the  allegation  referring  to  the  persons  "  to  the  grand 
jurors  unknoAvn"  Avas  true.  Plaintiff  in  error  requested  the 
court  to  instruct  the  jury  as  folloAvs :  "  Tiie  jury  are  instructed 
that  one  of  the  allegations  of  the  indictment  is  that  the  money 
charged  to  haA'e  been  receiA^ed  by  the  defendant  as  a  bribe  Avas 
so  paid  to  him  by  Charles  Branch,  and  other  persons  ay  hose 


80 


AMERICAN  CRIMINAL  REPORTS. 


namos  are  to  the  jurors  unknown,  Tliis  is  a  material  allega- 
tion in  the  indictment,  and  unless  you  are  satisfied  beyond  a 
reasonable  doubt  that  that  allocation  of  tijo  indictment  is  true, 
it  is  your  duty  to  acquit  the  defendant."  This  instruction  was 
refused  by  the  court,  to  which  plaintiff  in  error  excepted,  and 
now  as3i<i;ns  such  refusal  as  error. 

Upon  the  question  liere  presented  avo  have  only  to  say  that 
if  the  doctrine  of  the  common  law  was  in  force  in  this  state, 
yet  wc  could  not  hold  the  action  of  the  court  in  refusing  the 
instruction  to  bo  erroneous,  for  the  reason  that  the  instruction 
does  not  correctly  state  the  law.  It  attaches  too  much  iinpor- 
tanco  to  the  allegation  in  question.  While  it  is,  perhaps,  true, 
at  common  law,  that  if  it  was  shown  that  this  particular 
allegation  was  untrue, —  that  the  grand  jury  did  know  the 
parties  whose  names  were  omitted, —  then  that  an  acquittal 
must  follow ;  but  it  by  no  moans  follows  that  this  allegation, 
like  those  which  are  met  by  the  presumption  of  innocence, 
must  bo  proved  by  the  state  beyond  a  reasonable  doubt.  Upon 
the  contrary,  quite  a  different  rule  is  to  be  applied,  and  the 
burden  is  on  the  defendant  to  show  that  the  grand  jury,  at  the 
particular  time  of  linding  the  indictment,  knew  the  names  of 
the  parties  described  as  imknown.  Cotii.  v.  Gallo'/hei',  120 
Mass.,  54:;  Com.  v.  Hill,  11  Cush.,  137;  Com.  v.  Tompxnn^'i 
Cush.,  551;  Rex  v.  Bush,  Russ.  &  11.  Cr.  Cas.,  372;  Whart. 
Crim.  Ev.,  §  97.  The  doctrine  contended  for  by  plaintiff  in 
error  can  bo  found  in  Stime  v.  State,  30  Ind.,  115 ;  but  Wharton, 
in  his  work  on  Precedents  of  Indictments  and  Pleas,  vol.  1, 
p.  18,  refers  to  this  decision  as  pushing  the  doctrine  to  a  "  ques- 
tionable extreme ; "  and  such  is  evidently  the  case. 

The  indictment  in  this  case  specifies  the  payment  of  tlio 
money  by  Branch,  and  this  allegation  is  fully  sustained  by  the 
proof.  Branch  testilies  that  ho  paid  the  money  to  plaintiff  in 
error  for  the  corrupt  purpose  stated  in  the  indictment.  The 
fact  that  the  pleader,  prompted,  possibly,  by  overcaution  on 
account  of  the  peculiar  character  of  his  testimony  and  the 
uncertainty  which  naturally  suggested  itself  as  to  its  reliability, 
followed  the  name  of  Brancli  by  the  words  referred  to,  could 
not  possibly  work  any  prejudice  to  plaintiff  in  error.  IhiT, 
suppose  the  doctrine  of  the  common  law  ajjplied  ordinarily  to 
the  clause  in  question  with  all  the  force  claimed  by  plaiiitiff 


m  error, 
under  tl 
That  sec 
ment  foj 
between 
offered  i 
both  Chi 
any  pers 
name  or 
named  o 
for  an  j 
which  th 
material 
dcfendan 
l)efore  ua 
result  in 
It  is  in 
mitting  t 
bribery  v 
pal  contr 
it  must  b 
money  b\ 
at  ion  foi 
tlioir  busi 
not  only 
(luring  a 
that  plaii 
stand  tlia 
would  ha 
Branch  p 
that  the 
business  s 
$300  was 
the  busin 
was  paid, 
the  agent 
as  the  re 
them  pla 
would  tej 
liim  mon( 
Vo 


GUTHRIE  v.  STATE. 


81 


in  ciTor,  the  decision  of  the  district  court  would  still  be  correct 
under  the  provisions  of  section  413  of  the  Criminal  Code. 
That  section  is  as  follows :  '*  Whenevei,  on  trial  of  any  indict- 
ment for  any  offense,  there  shall  appear  to  be  any  variance 
between  the  statement  of  such  indictment  and  the  evidence 
offered  in  proof  thereof,  in  the  Christian  name  or  surname,  or 
both  Christian  and  surname,  or  other  description  whatever  of 
any  person  whomsoever  therein  named  or  described,  or  in  the 
name  or  description  of  any  matter  or  thing  whatsoever  therein 
named  or  described,  such  variance  shall  not  be  deemed  ground 
for  an  acquittal  of  the  defendant,  unless  the  court  before 
which  the  trial  shall  be  had  shall  find  that  such  variance  is 
material  to  the  merits  of  the  case,  or  may  be  prejudicial  to  the 
defendant."  Tliis  section  ends  all  dispute  as  to  the  question 
l)cfore  us,  as  the  variance  is  one  whicli  could  not  in  any  event 
result  in  any  prejudice  or  injury  to  plaintiff  in  error. 

It  is  insisted  by  plaintiff  in  error  tliat  the  court  erred  in  per- 
mitting the  state  to  prove  other,  separate  and  distinct  acts  of 
bribery  which  it  is  claimed  were  not  connected  with  the  ])rinci- 
pal  contract  alleged  in  the  indictment  and  proved  on  the  trial. 
It  must  bo  observed  that  the  indictment  charges  the  receipt  of 
money  by  plaintiff  in  error  as  an  inducement  to  and  consider- 
ation for  allowing  certain  persons  to  carry  on  and  jirosecute 
their  business  of  keeping  gambling-houses  unmolested  by  him, 
not  only  at  the  time  at  Vv'hich  the  money  was  received,  but 
(luring  a  time  in  the  future.  The  testimonv  of  Branch  shows 
that  plaintiff  in  error  approached  him  and  gave  him  to  under- 
stand that  money  would  have  to  be  paid  or  the  gambling-houses 
would  have  to  close  up.  The  testimony  shows  further  that 
Branch  paid  him  the  $000,  and  at  the  same  time  it  was  agreed 
that  the  gambling-houses  might  continue  to  carry  on  their 
husiness  so  long  as  they  paid  $50  per  month  each ;  that  the 
$300  was  only  to  pay  up  to  a  certain  date,  and  after  that  date 
the  business  should  bo  continued,  providing  the  $50  per  month 
was  paid.  The  testimony  shows  that  Branch  was  in  one  sense 
the  agent  of  plaintiff  in  error  in  these  transactions,  as  well 
as  the  representative  of  other  gamblers.  When  accosted  by 
tliem  plaintiff  in  error  directed  them  to  see  Branch,  who 
would  tell  them  what  to  do,  and  when  they  wanted  to  pay 
him  money  in  pursuance  of  the  contract  made  with  Branch, 
VoL,IV-6 


82 


AMERICAN  CRBUNAL  REPORTS, 


he  told  them  to  do  as  they  had  done  before  —  see  Branch.  It 
is  clearly  shown  that  the  agreement  was  a  continuing  one,  and 
contemplated  a  system  of  payments  to  bo  made  in  the  future, 
and  for  whicli  the  same  course  was  to  be  pursued  by  plaintiff 
in  error  as  for  the  $300.  It  was  known  by  plaintilf  in  error 
when  Branch  received  money,  and  no  gambling-house  was 
molested  after  its  share  of  the  money  had  been  paid.  Ho  was 
fully  advised  of  what  occurred  in  the  workings  of  the  plans 
and  designs,  not  only  at  the  time  of  the  receipt  of  the  §300, 
but  at  all  times,  so  long  as  the  system  under  which  they  were 
working  continued.  This  system  was  fully  developed  and  ex- 
posed by  Branch  in  his  testimony.  It  was  properly  admitted 
as  a  part  of  the  transaction  in  which  the  $300  was  paid  by 
Branch  to  plaintif"  in  '^iTor.  The  fact  of  the  carrying  out  of 
this  system  was  propar  evidence  for  the  purpose  of  corrobo- 
rating the  testimony  of  Branch  and  showing  the  purpose, 
underetanding,  and  intent  with  which  the  money  was  received 
as  alleged  in  the  indictment,  and  for  the  puqiose  of  showing 
the  system  under  which  these  several  transactions  were  had. 
For  these  purposes  the  testimony  was  competent.  State  v. 
Bridgman,  49  Vt.,  202 ;  Thayer  v.  Thayer,  101  Mass.,  Ill ; 
Kranwr  v.  Com.,  87  Pa.  St.,  299 ;  Rex  v.  Ilough,  Russ.  &  R. 
O.  Cas.,  120 ;  Rex  v.  Ball,  id.,  132 ;  Com.  v.  Prlce^  10  Gray, 
473;  Rex  v.  Francis,  12  Cox,  Crini.  Cas.,  G12 ;  Reg'uia  v.  Gar- 
ner, 4  Fost.  A:  F.,  34G ;  Whart.  Crini.  Ev.,  §  38  ct  seq. 

It  is  next  claimed  that  the  prosecution  should  have  been 
under  section  105  of  the  act  for  the  incorjioration  of  cities  of 
the  first  class  (Comp.  St.,  102),  instead  of  under  section  175  of  the 
Criminal  Code.  Section  175  of  the  Criminal  Code  makes 
the  act  of  receiving  a  bribe  by  an  oilicer  a  crime,  and  provides 
the  punishment  tlierefor.  This  section  is  of  unifonn  operation 
throughout  the  state,  and  applies  to  all  cases  of  the  kind. 
Section  105,  above  referred  to,  is  limited  to  city  oflicers,  and  is 
mainly  intended  to  prohibit  the  officers  of  such  city  from  being- 
interested  in  contracts  for  improvements,  etc.,  entered  into  by 
the  city,  and  to  prohibit  them  from  accepting  or  receiving 
anything  of  value  for  their  influence  or  vote.  It  has  no  appli- 
cation to  cases  of  tlie  kind  under  consideration. 

The  judgment  of  the  district  court  is  affirmed. 


STATE  V.  SHAFFER. 


83 


State  V.  Shaffeb. 

(59  Iowa,  290.) 

BonaiiAKY:  Indictment  for  compotind  offense — Possession  of  goods  recently 

stolen — Presumption. 

1.  Burglary— Indictment,  avhen  not  bad  for  duplictty.— Wlicre  de- 

fendant was  found  guilty  on  an  indictment  charging  that  he  broke  and 
entered  a  barn  in  which  wore  certain  goods,  etc.,  with  the  felonious  in- 
tent to  take,  steal  and  carry  away  said  goods,  etc.,  and  did  feloniously 
take,  steal  and  carry  away  certain  of  the  goods,  etc.,  and  the  court  in- 
structed the  jury  that  "  the  charge  in  the  indictment  that  the  defend- 
ant stole  goods  is  for  the  purpose  of  charging  the  public  offense  he 
intended  to  commit,  and  the  larceny,  if  any,  may  be  shown  and  consid- 
ered for  the  purpose  of  showing  the  intent  of  the  defendant  in  break- 
ing and  entering  said  building,"  a  motion  in  arrest  of  judgment,  because 
the  indictment  cliargod  two  offenses,  was  denied;  following  State  ?>. 
Hai/den,  45  Iowa,  11,  and  distinguishing  A^tefe  v,  Ridley,  48  Iowa,  370. 

2.  Possession  of  goods  recently  stolen  not  of  itself  sufficient  to 

WARRANT  conviction  OP  BURGLARY. —  Tho  presumptiou  of  guilt  which 
arises  from  the  possession  of  goods  recently  stolon  is  applicable  to  the 
crime  of  larceny,  but  not  tho  crime  of  burglary;  and  while  it  is  compe- 
tent evidence  tending  to  show  that  the  defendant  committed  the  burg- 
lary, it  is  not,  of  itself,  sufficient,  even  if  tmexplained,  to  warrant  a 
conviction. 

Appeal  from  Henry  Distinct  Court. 

The  indictment  in  this  case  charges  that  the  defendant  broke 
and  entered  the  burn  of  J.  M,  Holland,  in  which  barn  goods 
and  merchandise  and  other  things  of  value  were  kept  for  use, 
sale  and  deposit,  witli  the  felonious  intent  to  take,  steal  and 
carry  away  the  goods,  merchandise,  and  other  valuable  things, 
and  twenty  bushels  of  wheat  of  the  value  of  $14,  six  sacks  of 
tiic  value  of  82,  and  one  bridle  of  the  value  of  $1.50,  of  the 
goods  of  J.  ]\r.  Holland,  did  feloniously  take,  steal  and  carry 
away,  etc.  There  was  a  verdict  of  guilty  and  judgment  thereon, 
from  wliich  the  defendant  appeals. 

Z.  O.  ib  L.  A.  Palmer,  iav  appellant. 

Smith  IlcPherson,  attorney-general,  for  the  state. 

HoTHRocK,  J.  1.  The  defendant,  after  verdict,  moved  in 
arrest  of  judgment  on  the  ground  that  the  indictment  is  in- 
sufficient and  void.  The  motion  was  overruled,  and  the  de- 
fendant assigns  the  action  of  the  court  in  overruling  the  same 


64 


AMERICAN  CRIMINAL  REPORTS. 


as  error.  He  insists  that  the  indictment  is  bad  for  duplicity, 
in  that  it  charges  a  felonious  breaking  with  intent  to  connuit 
larceny,  and  also  tlie  commission  of  larceny. 

In  State  v.  llaijden,  45  Iowa,  il,  an  indictment  which  was  in 
substance  the  same  as  that  in  this  case  was  sustained.  It  was 
held  that  the  cliarge  of  stealing  might  be  regarded  as  a  mere 
pleadiiig  of  evidence  or  surplusage,  whicli  might  have  been 
properly  introduced  in  support  of  the  char<,o  of  an  intent  to 
steal.  That  case  was  tried  upon  that  theory  in  the  district 
court,  and  the  jury  were  instructed  that  the  defendant  was  on 
trial  for  breaking  and  entering  the  building  Avith  intent  to 
steal,  and  he  a  as  found  guilty  of  that  offense.  The  some  may 
be  said  of  the  case  at  bar.  The  court  instructed  the  jury  tluit 
"tlie  charge  in  the  indictment  that  the  defendant  stole 
goods  is  for  the  purpose  of  charging  the  public  offense  he  in- 
tended to  commit,  and  the  larceny,  if  any,  may  be  shown  and 
consi<lered  for  the  purpose  of  showing  the  intent  of  the  de- 
fendant in  breaking  and  entering  said  building."  This  case  is, 
then,  in  strict  accord  with  the  rule  laid  down  in  IlaydevUs  Case. 
Afterwards,  in  State  v.  Bidley,  48  Iowa,  870,  in  an  indictment 
substantially  the  same  as  in  Hayden^s  Case  and  the  case  at  bar, 
the  court  instructed  the  jury  that  three  crimes  were  charged 
in  the  indictment :  (1)  Larceny  in  a  store  in  the  night-time ; 
(2)  breaking  an^l  entering  a  store  with  intent  to  steal;  and  (.*>) 
simple  lai'ccny.  The  defendant  was  found  guilty  of  larceny 
from  a  store  in  the  night-time.  It  was  urged  in  that  case  that 
the  conviction  Avas  proper,  under  the  indictment,  because  the 
crime  charged  was  a  compound  offense,  and  that,  under  section 
4300  of  the  code,  the  several  offenses  included  in  the  compound 
offense  could  properly  be  charged  ,n  the  same  indictment.  We 
there  held  tliat  burglary  and  larceny  were  not  a  compound 
offense,  and  that,  as  the  defendant  was  convicted  of  the  lar- 
ceny on  an  indictment  for  feloniously  breaking  and  entering  a 
building,  the  conviction  could  not  stand.  The  question  in  the 
last-named  case,  so  far  as  it  involved  the  sufficiency  of  the  in- 
dictment, Avas  confined  to  the  inquiry  Avhether  or  not  the  crime 
charged  Avas  a  compound  offense.  It  having  been  held  that  it 
Avas  not  a  compound  offense,  under  the  rule  in  IlayderHs  Case, 
the  defendants  Avere  convicted  of  a  crime  Avith  Avhich  they 
were  not  charged.    We  think  the  indictment  in  this  case  Avas 


vi: 


STATE  V.  SHAFFER. 


85 


sufficient  to  support  a  verdict  of  guilty  of  the  felonious  break- 
ing of  the  building. 

2.  Upon  the  question  of  the  possession  of  the  goods  recently 
stolen,  the  court  instructed  the  jury  as  follows :  "  And  if  the 
burn  was  closed  up  at  night,  so  that  it  could  not  be  entered 
without  breaking,  and  it  was  so  closed  at  9  o'clock  at  night, 
and  at  about  12  o'clock  of  the  same  night  some  of  the  goods 
kept  in  said  barn  during  this  time  were  found  in  the  possession 
of  the  defendant,  or  the  defendant  and  others,  this  would  be 
prima  facie  evidence  that  the  defendant  broke  and  entered 
said  building ;  and  this  alone,  in  the  absence  of  othor  evidence, 
and  the  possession  not  explained,  showing  it  to  be  an  innocent 
jtossession,  would  be  sutHcient  to  warrant  a  conviction  of  the 
crime  charged."  The  substance  of  this  instruction  is  that  the 
possession  of  goods  recently  burglariously  stolen  is,  of  itself, 
if  unexplained,  suiiieieut  evidence  upon  which  to  find  the  de- 
fendant guilty  of  the  burglary.  We  think  the  presumption 
wliicli  ai'ises  from  the  possession  of  goods  recently  stolen  is  ap- 
plicable to  the  crime  of  larceny,  but  not  the  crime  of  burglary. 
The  most  that  can  be  said  of  it  is  tluit  it  is  evidence  tending 
to  show  that  the  defendant  committed  the  burglary.  It  surely 
was  comj)etent  evidence  bearing  upon  the  guilt  of  the  defend- 
ant; but  that  it  was,  of  itself,  sufficient,  if  unexplained,  to 
warrant  a  conviction,  appears  to  be  without  the  support  of  au- 
thority, but  directly  contrary  thereto,  -/ones  v.  /State,  0  Parker, 
125 ;  Whait.  Crim.  Ev.,  §  703 ;  Inf/all  v.  State,  48  Wis.,  047 ; 
Steicart  v.  People,  Sup.  Ct.  Mich.,  3  K  W.  Rep.,  803 ;  2  Bishop, 
Crini.  Proc,  §  747,  note  3. 

For  the  error  in  this  instruction  the  judgment  of  the  district 
court  must  be  reversed. 

Note.— In  Taliaferro  v.  The  Commomrcalth,  77  Va.,411,  it  is  held  tliat 
the  ijdssossion  of  goods  recently  stolen  creates  a  presumption  that  the  person 
found  in  possession  of  them  is  the  thief.  "  But  it  has  never  been  decided 
in  this  state  that  such  possession  is  even  prima  facie  evidence  of  guilt  in 
ciuses  of  burglary  ai:d  house-breaking." 

But  where  gootls  have  been  feloniously  taken  by  means  of  a  burglary, 
and  they  are  immediately  or  soon  thereafter  found  in  tlie  actual  and  ex- 
clusive possession  of  a  person  who  gives  a,  false  account,  or  refuses  to  give 
any  account,  of  the  mamier  in  which  he  came  into  possession,  proof  of  such 
possession  and  guilty  conduct  is  presumptive  evidence  not  only  that  he  stole 
the  goods,  but  that  he  made  use  of  the  means  by  which  access  to  them  waa 
obtained.    Dan's  v.  The  People,  1  Paiker,  Cr.  Cas.,  447. 


86 


AMERICAN  CRIMINAL  REPORTS. 


The  State  v.  Martin. 

(76  Mo.,  337.) 

Burglary  and  larceny:  Autrefois  convict— Crime,  grades  of. 

1.  Autrefois  convict— When  no  bar.— As  burglary  and  larceny  com- 

mitted at  the  same  time  are  separate  and  distinct  offenses,  a  conviction 
of  one  is  no  bar  to  a  prosecution  for  the  other. 

2,  Burglary  and  larceny  —  Crime  consisting  of  deorees.- Under  the 

Revised  Statutes  of  Missom-i,  sec.  1053,  wliich  provides  "  that  if  upon 
the  trial  of  any  person  for  any  misdemeanor  it  shall  appear  that  the 
facts  given  in  evidence  amount  in  law  to  a  felony,  such  person  by  reason 
thei-eof  shall  not  be  entitled  to  be  acquitted  for  such  misdemeanor;  and 
no  person  tried  for  such  misdemeanor  shall  be  liable  after^vard  to  bo 
I  prosecuted  for  felony  on  the  same  facts,  unless  the  court  shall  think  fit 
I  in  its  discretion  to  discharge  the  jury  from  giving  any  verdict  upon  such 
trial,  and  to  direct  such  person  to  bo  indicted  for  a  felony,  in  which  case 
such  person  may  be  dealt  with  in  all  respects  as  if  he  had  not  been  put 
upon  his  trial  for  such  misdemeanor,"  lield,  that  this  section  has  no  ref- 
erence to  independent  offenses,  but  has  application  to  that  class  of 
offenses  of  which  there  are  different  degrees  or  grades,  and  of  which 
grades  or  degrees  the  misdemeanor  charged  is  one  —  that  it  would  apply 
to  petit  and  giand  larceny,  but  not  to  burglary  and  larceny. 

Error  to  Jackson  Criminal  Court.  Hon.  Henry  P.  White, 
Judge. 

3L  Campbell,  for  plaintiff  in  error. 

D.  II.  Mclntyre,  attornej'^-general,  for  the  state. 

Norton,  J.  The  defendant  was  indicted  at  the  November 
term,  1881,  in  the  Jackson  county  criminal  court,  for  burglary 
and  larceny.  The  indictment  contained  but  one  count,  which 
charged  the  commission  of  both  burglary  and  larceny. 

The  defendant,  in  addition  to  his  plea  of  not  guilty,  also  put 
in  a  special  plea  in  bar,  averring  therein  that  on  tlie  17th  day 
of  October,  1881,  J.  W.  Childs,  a  justice  of  the  peace  within 
and  for  said  county,  issued  his  warrant  for  the  arrest  of  defend- 
ant on  a  charge  preferred  for  petit  larceny;  that  he  was 
arrested  by  virtue  of  said  warrant,  was  tried  and  convicted  of 
petit  larceny  of  the  same  goods  and  chattels  whicli  he  is 
charged  with  stealing  in  the  said  count  of  said  indictment;  that 
on  the  trial  before  said  Childs  all  the  facts  of  the  transaction 
on  which  the  indictment  is  founded  were  brought  out  in  evi- 
dence, but  that  said  Childs  nevertheless  proceeded  to  try 


THE  STATE  v.  MARTIN. 


87 


defendant  for  petit  larceny,  of  which  he  was  convicted  and 
punishment  ausessed. 

Upon  the  trial  of  the  cause  defendant  was  convicted  of 
burglary,  and  his  punishment  assessed  at  five  years'  imprison- 
ment in  the  penitentiary,  the  court  having  in  effect  instructed 
the  jury  that  un<ler  the  defendant's  plea  of  autrefois  convict 
they  could  not  lind  defendant  guilty  of  the  larceny  charged, 
but  might  iind  him  guilty  of  the  burglary,  if  they  believed 
from  the  evidence  that  he  committed  it.  From  the  judgment 
rendered  det'cncUint  has  prosecuted  his  writ  of  error,  and  the 
sole  question  presented  by  the  record  is  whether  the  convic- 
tion of  the  defendant  of  petit  larceny,  as  set  forth  in  his  special 
plea,  was  a  bar  to  a  subsequent  prosecution  for  the  burglary? 

The  solution  of  this  question  depends  upon  the  fact  as  to 
whether  the  indictment  charges  but  one  or  two  distinct  and 
separate  offenses.  If  the  larceny  charged,  in  law,  is  so  com- 
bined Avith  the  burglary  as  to  make  the  charge  simply  an  ag- 
gravated burglary,  the  plea  relied  upon  is  an  effectual  bar  to 
the  prosecution.  But,  if  the  said  burglary  and  larceny  are 
each  distinct  offenses,  the  plea,  while  good  as  to  the  larceny,  is 
bad  as  to  the  burglary,  as  tlie  plea  of  mitrefois  convict  must 
allege  and  the  proof  must  show  the  offense  for  which  the  defend- 
ant was  convicted  is  the  offense  alleged  in  the  indictment.  62 
Mo.,  592.  That  the  burglaiy  and  larceny  alleged  to  have  been 
committed  by  defendant  are  separate  offenses  has  been  decided 
by  this  court,  in  the  case  of  State  v.  Alexander,  50  Mo.,  131, 
where  defendant  was  in  the  same  count  charged  with  burglary 
in  the  first  degree  and  also  with  larceny.  He  Avas  convicted 
of  burglary  in  the  second  degree  and  also  of  larceny.  The 
judgment  was  affirmed  as  to  larceny,  but  reversed  as  to  the 
burglary,  on  the  sole  ground  that  defendant  was  convicted  of 
burglary  in  the  second  degree,  while  the  indictment  charged 
burglary  in  the  first  degree.  They  were  thus  treated  as  sep- 
arate offenses.  So,  in  the  case  of  The  State  v.  Barker,  CA  Mo., 
283,  where  thr  indie cmcnt  contained  one  count  charging  defend- 
ant with  burglary  and  larceny,  it  was  held  that  the  court  prop- 
erly instructed  the  jury  that  they  might  find  defendant  guilty  of 
the  larceny  and  acquit  him  of  the  burglary.  It  necessarily  fol- 
lows from  the  ruling  in  said  cases  that  the  two  offenses  are  dis- 
tinct, for  if  they  constituted  but  one  offense,  an  acquittal  of  the 
burglary  would  also  be  an  acquittal  of  the  larceny,  and  vice  versa. 


TH"^  ;  SO?;  «Y  OF 

JilE  Ui  ;«OCif.TY 


88 


AMERICAN  CRIMINAL  REPORTS. 


This  conclusion  is  not,  however,  left  to  logical  deduction,  as 
in  the  case  of  State  v.  Bruffey,  75  Mo.,  880,  it  was  expressly 
held  that  "  burglary  and  larceny  are  two  distinct  and  inde- 
pendent oifcnses.  The  Eevised  Statutes,  section  1301,  permits 
a  prosecution  for  botli  in  the  same  count  or  in  separate  counts, 
but  nowhere  intimates  that  the  two  may  be  regarded  as  one 
offense.  On  the  contrary,  provision  is  made  in  the  same  sec- 
tion for  a  separate  assessment  of  punishment  for  each  of  the 
two  crimes."  The  case  last  cited  and  that  in  02  Mo.,  502,  fully 
sustained  the  action  of  the  trial  court  in  holding  that  the  plea 
in  bar,  while  good  as  to  larceny,  was  bad  as  to  the  burglary. 

In  the  case  of  Wilson  v.  State,  21  Conn.,  57,  after  an  ex- 
haustive examination  of  tlie  question,  it  was  held  that  the  con- 
viction of  a  person  for  petit  larceny  committed  at  tlie  same 
time  a  burglary  was  committed,  was  not  a  bar  to  a  subsequent 
prosecution  for  the  burglary  ;  and  in  case  of  Com.  v.  liahi/,  1 2 
Pick.,  400,  it  was  held  that  a  plea  in  bar  is  bad  if  the  offenses 
charged  in  the  two  indictments  be  perfectly  distinct  in  point 
of  law,  however  closely  they  may  be  connected  in  point  of  fact. 

It  is  claimed  by  counsel  that  tlie  plea  in  Ijar  was  effectual 
as  to  both  offenses  under  section  1053,  Eevised  Statutes,  which 
provides  "  that  if  upon  the  trial  of  any  persiMi  for  any  misde- 
meanor it  shall  appear  that  the  facts  given  in  evidence  amount 
in  law  to  a  felony,  such  person  by  reason  thereof  shall  not 
be  entitled  to  be  acquitted  of  such  misdemeanor;  and  no 
person  tried  for  such  misdemeanor  shall  bo  liable  afterward  to 
be  prosecuted  for  felony  on  the  same  facts,  urdess  the  court 
shall  think  fit  in  its  discroti(m  to  discharge  the  jury  from  giv- 
]  \g  any  verdict  upon  such  trial,  and  to  direct  such  person  to 
be  indicted  for  a  felony,  in  which  case  such  person  may  be 
dealt  with  in  all  respects  as  if  ho  had  not  been  put  upon  liis 
trial  for  such  misdemeanor." 

This  section  has  no  reference  to  an  independent  offense  which 
may  be  disclosed  by  the  evidence  relating  to  the  misdemeanor 
charged,  and  for  Avhioh  a  party  is  on  trial,  but  has  ai)plication 
to  that  class  of  offenses,  of  which  there  are  different  degrees 
or  grades,  and  of  which  grades  or  degrees  the  misdemeanor 
charged  is  one.  The  present  case  affords  an  illustration  of  its 
meaning.  There  are  two  grades  of  larceny,  one  grand  and 
the  other  petit  larceny,  one  a  felony  and  the  other  a  misde- 
meanor.   Defendant  was  tried  by  the  justice  on  a  charge  of 


THE  STATE  v.  MARTIN. 


89 


petit  larceny ;  the  evidence  adduced  in  siippor<^  of  the  charge 
showed  that  the  larceny  being  committed  at  the  same  time  a 
burglary  was  committed,  was  grand  larceny,  and,  therefore,  a 
felony.  The  justice  might,  under  the  statute,  have  discharged 
the  jury  and  bound  the  defendant  over  to  answer  an  indictment 
to  be  preferred  for  the  higher  offense.  Thib  '\e  did  not  do,  but 
tried  and  sentenced  him  for  the  misdemeanor,  and  thereby 
exempted  him  from  further  prosecution  for  the  higher  grade 
of  larceny  charged  by  the  indictment.  Judgment  affirmed, 
all  concurring. 


Note.— In  Tlie  State  v.  Bmffey,  11  Mo.  App.,  79  {S.  C,  affirmed,  75  Mo., 
liSO),  the  defendant  wa.s  indicted  for  burglary  and  larceny  i'-  one  count,  as 
permitted  by  the  statute,  and  convicted  of  larceny.  His  mol^jn  for  a  new 
trial  was  allowed,  and  he  was  subsetpiently  placed  on  trial  for  both  offenses, 
f!onvieted  and  sentenced  to  tlie  penitentiary  thiee  years  for  the  burglary,  and 
two  for  the  larceny.  The  appellate  court  reversed  the  case  as  to  the  burglary 
iiiul  affirmed  it  as  to  the  larceny.  Lewis,  P.  J.,  delivering  the  opinio"  of 
the  court,  said :  "  The  defendant  was  indicted  for  burglary  and  larceny,  both 
otlenscs  being  chargeil  iii  one  count.  Upon  trial  before  a  jury  he  was  con- 
victed of  tlie  larceny,  but  acquitted  as  to  the  burglary.  His  motion  for  a 
new  trlfil  w;is  sustained,  and  at  a  subsequent  term  he  was  again  tried  on  the 
same  indictment  and  found  guilty  of  botli  burghuy  and  larceny.  It  is 
assigned  for  error  that  the  defendant  coukl  not  lawfully  be  convicted  of 
burglary  on  the  second  trial,  after  his  ac(piittal  of  that  offense  on  the  first. 
Burglary  and  larceny  are  two  distinct,  separate  and  independent  oifenses. 
The  statute  (R.  S.,  §  IJJOl)  permits  a  prosecution  for  both  in  the  same  count, 
or  in  separate  counts  of  the  same  indictment,  but  nowhere  intimates  that 
the  two  may  bo  regarded  as  one  offense.  On  t'  :e  contrary,  provision  is  made 
in  the  same  section  for  a  sei)arate  assessment  of  punishment  for  each  of  the 
two  crimes.  In  State,  v,  Alexander,  50  Mo.,  131,  the  defendant  was  convicted 
of  burglary  and  larceny  in  ono  proceeding.  The  supreme  court  affirmed 
the  judgment  as  to  the  larceny,  and  reversed  it  as  to  the  burglary.  If  there 
had  been  two  indictments,  one  for  each  of  the  crimes  charged,  and  two 
separate  trials,  it  will  hardly  be  questioned  that  the  granting  of  a  new  trial 
in  the  one  case  would  not  reopen  a  verdict  of  acquittal  in  tlie  other.  Such 
an  acipiittal  would  be  a  perpetuid  bar  under  article  2,  sei.tion  2'i,  of  our 
state  constitution.    .    .     . 

"  '  Nor  shall  any  person,  after  being  once  acquitted  by  a  jury,  be  again,  for 
the  same  offense,  put  in  jeopardy  of  life  or  liberty.'  We  are  unable  to  perceive 
how  the  general  assembly  can,  by  a  statute  regulating  crimiiuil  proce<lure, 
deprive  any  citizen  of  a  constitutional  right.  No  such  effect  wiis  intended, 
and  none  can  follow  a  law  which  simply  provides  for  the  triid  of  two  of- 
fenses (iharged  imder  ono  indictment.  Tlie  i)rosecution  for  burglarj',  in  thie 
case,  was  ended  forever  by  the  verdict  of  not  guilty. 

"  It  is  claimed  for  the  state  that  the  familiar  constitutional  rule  has  been 
changed  by  a  provision  in  the  scLtiou  above  referred  to,  that ' ."  judgment 


90 


AMERICAN  CRIMINAL  REPORTS. 


be  arrested  after  a  verdict  of  guilty  on  a  defective  indictment,  or  if  judg- 
ment on  a  verdict  of  guilty  be  reversed  for  error  in  law,  nothing  herein 
contained  chall  prevent  a  new  trial  of  the  prisoner  on  a  proper  indictment, 
or  according  to  correct  principles  of  law.'  Tliis  provision  has  no  application 
whatever  to  the  quL-stion  before  us.  As  to  the  '  offense,'  touching  which 
defendant  claims  constitutional  exemption  from  second  trial,  there  was  no 
'  verdict  of  guilty,'  and  no  arrest  of  judgment  or  reversal  of  such  verdict, 
for  eiTor  of  law  or  otherwise.  The  constitutional  exemption  distinctly  ap- 
plies to  the  offense,  and  not  merely  to  the  procedure.  There  was  a  verdict 
of  guilty  as  to  the  offense  of  lai'ceny,  and  no  doubt  exists  that  the  second 
trial  upon  that  charge  was  proper  upon  well  established  principles. 

"  We  are  referi'ed  to  State  v.  Siniins,  71  Mo.,  538.  In  that  case  it  was  held 
that  where  a  conviction  of  murder  in  the  second  degi'co  on  an  indictment 
charging  ni.urder  in  the  first  degi-eo  has  been  set  aside,  the  defendant  may, 
under  the  present  constitution,  be  tried  a  second  time  for  the  murder  in  the 
first  degree.  Tliere  the  indictment  charged  but  one  offense  —  murder,  in- 
cluding all  the  grades.  The  prisoner  was  found  guilty  of  that  offense, 
though  in  a  degree  inferior  to  the  charge.  The  effect  was  very  different 
from  that  of  a  conviction  for  a  totally  different  offense,  which  the  statute 
might  have  permitted  to  bo  tried  by  the  same  jury.  No  lawyer  will  say 
tliat  larceny  is  a  grade  of  burglary,  or  vice  versa.  We  find  notliing  in  this 
decision  to  disturb  our  conclusions  in  the  present  case." 

The  supreme  court,  after  quoting  the  foregoing  paragraphs  affirming  the 
case,  say:  "  Tliis  opinion  of  the  St.  Louis  court  of  ajipeals,  with  its  reason- 
ing, conclusiveness  and  citation  of  authorities,  wo  have  also  carefully  con- 
sidered and  examined,  and  deem  it  a  just,  true  and  faithful  exposition  and 
presentation  of  the  law  of  the  case,  with  which  wo  are  well  satisfled." 


AsHTON  V.  The  State. 

(08  Ga.,  25.) 
Burglary:  Dwelling-house. 

1.  Dwelling-house  occupied  in  part  by  servant.—  Wliero  a  dwelling- 

house  was  occupied  by  one  in  charge  of  a  plantation,  and  he  ordinarily 
slept  in  one  room  of  it,  the  enth-e  house  was  his  dwelling-house, 
although  another  room  mny  have  been  occasionally  occupied  as  an  office 
or  bedroom  by  another  who  while  there  was  tlie  master. 

2.  Burglary  at  common  law  and  under  the  statute.— The  act  of  1870 

(page  05)  did  not  alter  the  law  of  burglary  otherwise  tlian  to  put  burg- 
lary, whether  committed  in  the  day  or  night,  on  the  same  plane  in 
respect  to  punishment. 

Burglar}^,  Master  and  Servant,  Laws.    Before  Judge  Sncad. 
Eichmond  Superior  Court,  April  Terra,  1881. 


SIMMERMAN  v.  STATE. 


91 


Jackson,  Chief  Justick.  1.  The  defendant  was  convicted 
of  burglary ;  ho  broke  and  entered  a  dwelling-house ;  it  must 
have  been  with  the  intent  to  steal,  though  he  was  caught  be- 
fore he  committed  the  felony.  The  house  belonged  to  Mrs. 
Moore,  as  charged  in  the  indictment ;  it  was  used  as  a  dwelling- 
house  by  Alfred  Maddox  as  cliarged,  because  he  occupied  one 
room  of  it  generally,  and  had  charge  of  it  as  foreman  of  the 
hands  on  the  plantation.  It  made  no  difference  that  Wm.  H. 
Warren,  occasionally  when  visiting  the  plantation,  lodged  in 
one  room,  even  if  he  were  master,  and  jMaddox  servant,  when 
he  was  there.  It  was  more  constantly  used  by  JMaddox  as  a 
residence  or  domicile  than  by  Warren.  We  see  no  material 
error  in  the  ruling  of  the  court  on  these  points. 

2.  The  act  of  1879  (Laws  of  1879,  page  G5)  leaves  the  defini- 
tion of  burglaiy  as  it  stood  before  in  the  code.  Its  effect  is 
simply  to  alter  the  law  of  burglary  in  respect  to  punishment, 
putting  burglary  in  the  day-time  and  at  night  on  the  same 
footing,  and  leaving  it  to  the  judge  to  ])unlsh  either  at  his  dis- 
cretion within  the  extremes  of  the  penalty  prescribed  —  any 
term  of  time  between  the  shortest  and  longest  time  prescribed. 

It  loaves  burglary  a  crime,  whether  the  breaking  and  enter- 
ing with  felonious  intent  be  made  day  or  night. 

Judgment  ajlrtned. 


SiMMEKMAN   V.    StATE. 

(16  Neb.,  615.) 

Change  op  venue:  Arrest  by  private  person — Argument  of  prosecutor. 

1.  Change  op  venue. —  An  affidavit  for  change  of  venue  on  the  ground  of 
the  bias  and  prejudice  of  the  people  of  a  county  should  be  made  by  one 
knowing  the  facts  which  he  swears  to.  One  made  by  a  non-resident, 
who  shows  no  means  of  knowledge,  is  not  sufficient. 

3.  Obtaining  affidavits. —  If  a  party  is  unable  to  obtain  affidavits  from 
residents  of  a  county  he  may  state  to  whom  he  applied  for  the  same,  the 
reasons  given  by  each  for  refusing,  and  that  he  was  unable  to  jirocure 
affidavits  in  support  of  his  motion  because  of  the  refusal  of  the  citizens 
to  give  the  same. 

;5  Felony — Arrest  by  private  person. —  Where  a  felony  has  been  com- 
mitted, and  there  is  good  cause  to  believe  that  a  certain  party  committed 
the  same,  a  private  person  may  arrest  such  piirty  until  a  warrant  can  be 
procured. 


«^ 


92  AMERICAN  CRIMINAL  REPORTS. 

4.  Argument  of  district  attorney.— Where  the  testimony  showed  that 
the  plaintiff  was  a  lierdor  on  the  plains,  carried  two  revolvers  and  a 
knife,  and  made  a  display  of  them,  and  his  companion  carried  four 
revolvers,  held,  that  it  was  not  error  for  the  district  attorney  to  speak  of 
him  to  the  jury  as  "  Billy  the  Kid,  or  Jesse  James  sort  of  a  cow  boy," 
as  the  testimony  warranted  the  language. 

Error  from  Kearney  County. 

Burr  <£  Parsons,  for  plaintiff  in  error. 

77ie  Attorney-Geiural  and  IF.  S.  Morlaii  for  defendant. 

Maxwell,  J.  The  case  of  Simnierman  v.  State  was  before 
this  court  in  1883  (14  J^eb.,  568;  17  K  W.  Kep.,  115),  the  judg- 
ment of  the  court  below  being  reversed,  and  the  cause  re- 
manded for  a  new  trial.  A  second  trial  was  then  had,  which 
resulted  in  the  conviction  of  the  plaintiff  of  murder  in  the 
first  degree.  The  errors  relied  upon  in  the  plaintiff's  brief  will 
be  considered  in  their  order : 

1.  That  the  court  erred  in  overruling  the  motion  for  a  change 
of  venue.  The  motion  was  supported  by  four  affidavits.  That 
of  A.  F.  Parsons  stated  in  substance  that  he  was  an  attorney  at 
law  residing  at  Lincoln;  tliat  he  w^ent  to  Kearney  county  prior 
to  the  term  of  court  at  Avhich  the  defendant  was  tried  the  last 
time,  and  was  unable  to  procure  the  affidavits  of  citizens  of 
said  county  as  to  the  bias  or  prejudice  of  the  citizens;  that 
they  told  him  they  would  hang  Simmerman  if  he  was  tried  and 
acquitted,  and  that  Simmerman  would  not  leave  IMinden  alive ; 
that  they  had  ropes  in  the  court-room  with  which  to  hang  him. 
L.  C.  Burr  also  swears  that  he  is  an  attorney  at  law  residing  in 
Lincoln ;  that  ho  has  been  and  is  acquainted  with  the  sentiment 
of  the  citizens  of  Kearney  county ;  that  the  killing  of  Woods 
has  caused  a  public  discussion  in  the  newspapers  of  the  state 
of  general  circulation  in  -iaid  county.  A  number  of  extracts 
from  leading  papers  in  t'.ie  state  condemning  the  murder  and 
tending  to  incite  violence  are  copied  in  the  affidavit.  He  also 
states  that  one  Watkins,  editor  of  one  of  the  county  papers  of 
Kearney  county,  told  him  that  he  Avas  employed  by  an  Omaha 
paper  to  write  a  full  account  of  the  lynching  of  Simmerman 
by  a  mob,  and  that  the  article  was  then  written,  even  to  the 
date  of  the  hanging.  Simmerman  also  swears  that,  during  the 
former  trial,  guards,  who  had  rifles  and  pistols  in  sight  of 


SIMMERMAN  v.  STATE. 


93 


the  jury,  were  in  the  court-room,  and  that  a  rope  was  seen 
there.  lie  also  swears  that  he  cannot  have  a  fah'  and  impai'tial 
trial  in  that  county,  by  reason  of  the  prejudice  of  the  citizens, 
his  information  being  derived  from  the  newspapers,  Francis 
Ilair  also  makes  an  affidavit  to  the  same  effect.  On  the  part 
of  the  state,  an  atfldavit  with  twenty-four  names  of  residents 
of  the  county  was  filed,  stating  that  there  had  been  a  large 
increase  of  the  population  of  the  county  by  immigration  since 
the  murder  was  committed,  of  men  who  knew  nothing  what- 
ever about  the  case,  and  that  there  was  no  bias  or  prejudice 
against  the  plaintiff. 

The  constitution  guaranties  to  every  one  accused  of  crime  a 
fair  trial  before  an  impartial  jury,  and  whenever  it  is  made  to 
a])poar  satisfactorily,  from  the  evidence  of  leading  citizens  of 
tlie  county,  that  there  is  a  bias  and  prejudice  in  that  county 
against  a  ]^arty  accused  of  crime,  so  strong  as  to  prevent  a  fair 
trial,  it  is  the  duty  of  the  court  to  grant  a  change  of  venue 
{Richmond  v.  State,  ante,  J?S8);  because,  if  the  excitement  in 
a  community  is  great,  or  the  bias  so  strong  as  to  prevent  the 
jury  from  dispassionately  weighing  the  evidence  and  render- 
ing a  vei'dict  accordingly,  the  accused  has  been  deprived  of  his 
constitutional  rights,  and  may  not  have  been  found  guilty  upon 
the  evidence  alone.  Courts  should  be  very  careful  to  see  that 
a  fair  and  imj^artial  trial  is  had  in  every  case.  But  a  party 
seeking  a  change  of  venue  must  show,  by  the  best  evidence  that 
can  be  obtained,  the  bias  and  prejudice  against  him.  Thus,  in 
Rlehnond  v.  State  {S.  C,  20  X.  W.  Eep.,  282),  certain  citizens 
of  Plattsinouth  made  affidavits  setting  forth  how  long  they 
had  resided  there,  their  several  occupations  and  means  of  ac- 
(|uiring  knowledge  of  public  sentiment,  and  then  stated  from 
their  own  knowledge  the  facts  in  relation  to  the  bias  and  prej- 
udice of  the  public.  The  affiants  swore  to  facts  within  their 
own  knowledge.  But  in  this  case  there  is  not  a  single  affidavit 
in  support  of  the  motion  filed  by  a  citizen  of  Kearney  county. 
It  is  true,  it  is  stated  that  the  plaintiff  was  unable  to  procure 
such  affidavits,  but  whether  or  not  an  effort  was  made  to  that 
effect  is  left  entirely  to  conjecture.  It  is  possible  in  some  cas5s 
affidavits  cannot  be  obtained  in  the  county  in  support  of  such 
a  motion,  and  where  such  is  the  case  the  party  must  state  the 
facts;  that  is,  what  efforts  he  made  to  procure  the  same,  to 


94 


AMERICAN  CRIMINAL  REPORTS, 


whom  he  apphed,  and  the  reasons  given  by  the  several  per- 
sons whose  affidavits  were  sought,  for  refusing  to  give  the 
same.  Such  evidence,  while  not  very  satisfactory,  may  be 
sufficient  to  establish  bias  and  prejudice,  and  show  that  a  fair 
trial  cannot  be  had.  But  sweeping  allegations  of  persons  re- 
siding a  great  distance  from  the  county,  and  whose  knowledge 
is  derived  alone  from  a  casual  visit  or  from  newspapers,  as  to 
the  state  of  public  sentiment  therein,  is  of  very  little  value, 
and  tlie  same  may  be  said  of  the  extracts  from  newspapers. 
Most  of  the  papers  from  which  the  extracts  were  taken  are  of 
general  circulation  in  the  state,  and  it  is  apparent  that,  witli 
the  exception  of  the  Minden  paper,  have  no  greater  circu- 
lation in  Kearney  county,  in  proportion  to  population,  than 
in  the  surrounding  counties.  It  will  not  bo  contended  that 
because  the  newspapers  have  published  an  account  of  a  murder 
and  enlai'ged  upon  it  somewhat,  that,  therefore,  the  ])erson  who 
committed  the  murder  cannot  be  tried.  If  that  was  the  law, 
then  the  more  atrocious  the  crime  the  greater  the  immunity 
from  punishment.  As  to  the  arms  in  the  court-room,  sworn 
to  by  the  plaintiff  as  being  seen  on  the  former  trial,  the  purpose 
does  not  appear,  and  there  is  no  presumption  of  wrong. 

Such  arms  should  not  be  permitted  in  a  court-room  during  a 
trial,  and  we  cannot  believe  the  judge  knew  of  their  existence; 
and  had  his  attention  been  called  to  the  matter,  undoubtedly 
he  would  have  ordered  them  removed.  In  any  event,  it  is  not 
ground  for  reversal  that  on  a  former  trial  a  few  guns  or  other 
things  were  left  in  the  court-room  during  a  portion  or  the  whole 
of  the  trial.  It  is  due  to  the  judge  beforo  Avhom  the  case  was 
tried,  to  say  that  it  is  to  be  presumed  tliat  if  it  had  appeared 
to  him  that  from  any  cause  a  fair  and  impartial  trial  could  not 
be  had  in  Kearney  county,  that  ho  would  have  ordered  a  change 
of  the  place  of  trial.  It  must  affirmatively  appear,  therefore, 
that  the  court  erred  in  overruling  the  motion,  and  as  it  does 
not,  the  point  is  not  well  taken. 

2.  A  few  days  previous  to  the  Icilling  of  Woods,  one  Wray, 
a  resident  of  Hitchcock  county,  lost  about  thirty-five  head  of 
horses  out  of  the  county ;  the  brand  on  the  horses,  he  states, 
was  "  a  lazy  L."  The  horses  were  missing  from  the  county, 
and  as  they  seem  to  have  been  running  at  large,  lie  stated,  in 
substance,  that  he  had  lost  that  many ;  that  ho  telegraphed 


SIMMERMAN  v.  STATE. 


96 


Jack  Woods,  tho  sheriff  of  Hitchcock  county,  who  seems  to 
have  been  at  Kearney,  "  to  look  out  for  them,  as  they  Avere 
stolen."  Two  telegrams  Averc  sent  from  Hastings  to  Kearney, 
and  one  from  Culbertson  to  Kearney,  and  a  portion  of  these 
dispatches,  at  least,  were  received  and  answered  by  Woods. 

One  Nelson,  a  resident  of  Hitchcock  county,  testifies  that 
"in  the  forepart  of  October,  a  year  ago"  (18S3),  the  plaintiff, 
with  "three  others,  avIio  were  about  as  rough  looking  fellows 
as  he  Avas,  drove  a  bunch  of  horses  into  my  pens  on  my  ranch. 
I  saw  them  Avhen  they  were  driving  them  in  and  started  down 
there,  but  by  the  tiuie  I  got  there  they  had  them  in  and  one 
of  the  horses  caught."  He  also  states  that  they  had  about 
thirty  or  thirty-live  head,  and  that  tho  only  brand  he  recog- 
nized Avas  "  a  lazy  L."  Ho  also  states  that  about  the  18th  or 
10th  day  of  October,  1882,  he  met  Wray  returning  from 
]\Iinden  with  the  same  horses.  Also  Frank  Eldridge,  residing 
in  Hitchcock  county,  testified  as  follows :  "  I  had  been  in  the 
hotel  there  [at  Culbertson]  and  had  my  dinner,  and  Avas  sitting 
out  on  the  porch  in  front  of  tho  hotel,  and  some  persons  came 
out  and  asked  Avho  Avas  the  sheriff  of  the  county.  Question. 
Who  asked  that  question?  Atifiwcr.  Simmerman;  this  man 
here.  He  asked  that  question,  and  some  one  that  stood  there 
pointed  to  me,  and  I  said,  '  Jack  Woods  is  sheriff  of  this 
county.'  Simmerman  said,  'He  is  an  Englishman  and  a  great 
foot-racer.'  I  said,  '  Yes.'  He  said,  '  I  knew  him  in  Texas.  I 
knoAV  him  like  a  book.'  Q.  Did  you  know  Jack  Woods  per- 
sonally ?  A.  Yes,  sir;  I  knew  him  Avell.  Q.  State  Avhat  kind 
of  a  man  Jack  Woods  Avas,  physically.  Was  he  a  foot-racer  ? 
A.  Yes,  sir;  ho  could  run  Avell;  there  Avore  A^ery  few  that 
could  outrun  him."  There  is  also  other  testimony  tending  to 
shoAV  that  the  plaintiff  Avas  Avell  acquainted  with  Woods,  and 
that  he  Avas  sheriff  of  Hitchcock  county.  On  the  15th  of  Oc- 
tober, 1882,  tho  plaintiff,  Avith  thi'ee  others,  Avent  to  Minden, 
taking  Avith  them  a  portion  of  the  horses  belonging  to  AYray. 
The  plaintiff  Avas  armed  with  two  revolvers,  of  thirty-four  and 
thirty-eight  caliber,  and  Avith  a  knife.  Belmont,  one  of  his 
companions,  carried  four  roA^olvcfS.  It  is  pretty  evident,  too, 
from  the  testimony,  that  they  made  no  secret  of  the  number 
of  Aveapons  they  carried ;  tho  i)iaintiff,  in  particular,  having 
shoAvn  his  to  certain  residents  of  the  toAvn.  Belmont  and  tho 
plaintiff  took  supper  at  the  Commercial  Hotel  in  Minden. 


96 


AMERICAN  CRIMINAL  REPORTS. 


One  lilinnie  Dobson,  who  was  in  the  dining-room  while  they 
were  at  supper,  testifies  as  to  their  conduct  there  as  follows : 
"  Question.  State  where  you  saw  him  (Simmerman).  Annoer. 
I  saw  him  in  tlie  Commercial  Hotel,  in  tliis  town,  in  the  dining- 
room.  Q.  State  whether  the  defendant  here  made  any  re- 
marks there  about  being  arrested.  A.  He  did  at  the  supper 
table.  They  were  at  the  table,  eating  their  supper.  They 
were  blackguarding  and  talking  noisy,  and  Tuy  husband  came 
in  and  attended  to  them ;  then  tliey  tiiliced  between  themselves 
not  quite  so  loud.  I  was  brushing  off  the  other  table  and  I 
heard  some  words  that  I  thought  were  not  right,  and  I  listened 
to  it.  Simmerman  said  to  Belmont :  '  You  know  what  we  are 
looking  for  and  what  we  must  do.  You  want  to  keep  your 
eyes  sldnncd,  and  the  first  damned  son  of  a  bitch  that  walks 
up  to  arrest  you,  shoot  him  like  a  dog.  Don't  let  him  get  the 
drop  on  you.'  Q.  What  arms  did  they  have?  A.  Each  had 
a  six-shooter.  They  were  lying  on  their  laps.  They  sat  facing 
each  other,  so  one  could  look  into  the  kitchen  and  the  other 
into  the  dhiing-room." 

Also  one  Carson  testified  that  on  the  evening  of  the  15th  of 
October,  1SS2,  seeing  a  light  in  the  court-house  at  Minden,  the 
plaintiff  "  wanted  to  kno\v  who  was  under  arrest  for  stealing 
horses.  I  said  Hair  was.  He  said :  '  The  first  damned  son  of  a 
bitch  that  tried  to  aiTCst  him  for  horse  stealing  he  would  kill 
him,  or  he  would  kill  him.' " 

About  6  o'clock  on  the  evening  of  the  10th  of  October, 
1882,  the  plaintiff  and  Belmont  went  into  the  dining-room  of 
the  Prairie  Home,  a  hotel  in  Minden,  and  sat  down  at  the 
table  to  eat  supper,  each  one  drawing  a  revolver  and  laying  it 
on  his  lap.  There  is  a  conflict  in  the  testimony  as  to  their  rel- 
ative positions ;  the  plaintiff  and  a  number  of  witnesses  stating 
that  the  plaintiff  sat  at  the  right  of  Belmont,  while  an  equal 
number  of  witnesses  testify  that  he  sat  at  the  left.  While 
they  were  at  supper.  Jack  Woods  came  in  and  stepped  up  to 
them,  saying  that  they  were  to  consider  themselves  under 
arrest.  The  testimony  of  the  landlord,  who  was  waiting  on 
the  table  and  saw  the  entire  affair,  is  very  clear  as  to  the  rela- 
tive situations  of  the  parties  and  what  transpired,  and  is  as 
follows :  "  I  was  waiting  at  the  table  at  the  time ;  several  were 
there  eating  supper.  Just  as  they  were  sitting,  eating,  I  saw 
these  two  men,  Simmerman,  with  another  man,  come  in  the 


SIMMrRMAN  V.  STATE. 


97 


door,  and  they  soon  sat  drvvn  to  snpper.  Q.  Did  they  Imvo 
any  arms  on  their  persons  ?  A.  Yes,  sir ;  they  had  two  re- 
volvers, or  three,  and  a  big  knife.  They  took  a  napkin  and 
hiid  in  their  laps,  and  laid  their  revolvers  in  their  laps.  Then 
a  man  came  in  and  shut  the  door  after  him,  and  walked  in 
])otwocn  them  and  told  the  man  on  the  east  to  hold  up  his 
hands.  Then  the  fellow  on  the  west  grabbed  "Woods  by  the 
avm  and  threw  him  round  so  that  he  faced  him,  or  to  the  west. 
Tiion  the  fellow  on  the  east  shot  him  in  the  back,  and  the  fel- 
low on  the  west  said,  *  Give  him  another  one  and  shoot  him 
dead.'  Then  another  ball  was  fired  and  the  lights  went  out." 
On  cross-examination  he  testifies  that  the  plaintiff  sat  to  the 
left  of  Belmont,  and  that  Woods  placed  his  left  hand  on  the 
plaintiflf's  shoulder  and  "put  his  right  hand  in  between  them, 
and  said:  'Throw  up  your  hands,'  and  'You  are  my  pris- 
oners.' " 

Tills  testimony  is  corroborated  by  a  number  of  witnesses, 
and  by  tlie  wounds  that  caused  the  death  of  "Woods,  both  of 
wliicli  were  in  the  back.  The  testimony  showing  that  the 
plaintiff  killed  "Woods  is  clear  and  conclusive,  and  the  jury 
Avovo  not  only  justified  in  finding  that  the  pMntiff  was  guilty 
of  the  murder,  but  could  not  well  have  found  otherwise.  But 
it  is  said  that  even  if  he  did  kill  "Woods,  that  he  did  so  while 
resisting  an  unlawful  arrest,  and  therefore  was  justified ;  and 
that  evidence  that  certain  horses  were  stolen  and  in  possession 
of  the  plaintiff  and  Belmont  was  improperly  admitted.  The 
object  of  this  evidence  was  to  show  that  certain  horses  had 
boon  stolen,  and  that  a  poi'tion  of  them,  at  least,  were  in  the 
possession  of  the  plaintiff ;  in  other  words,  that  the  plaintiff 
was  guilty  of  a  felony.  This,  in  connection  with  the  evidence 
that  the  plaintiff  on  the  previous  day  had  threatened  to  kill 
any  one  that  attempted  to  arrest  him,  and  that  he  was  well 
acquainted  with  "Woods  and  knew  that  he  was  the  sheriff  of 
Hitchcock  county,  show  that  the  plaintiff  was  expecting  an 
attempt  to  arrest  him,  and  also  show  an  intention  tb  kill  who- 
ever should  make  the  attempt.  The  evidence,  therefore,  was 
properly  admitted  as  showing  a  cause  for  attempting  to  make 
the  arrest,  as  well  as  the  threats  to  kill. 

It  is  objected,  however,  that  "Woods  had  no  warrant,  and 
was  acting  in  a  county  where  he  had  no  official  character,  and 
Vol.  rv  — 7 


98 


AMERICAN  CKIMINAL  REPORTS. 


thereforo  he  was  without  authority.  Section  284  of  the  Crim- 
inal  Code  provides  that  "  any  person  not  an  officer  may  with- 
out warrant  arrest  any  person  if  a  petit  larceny  or  felony  lias 
been  committed,  and  there  has  been  reasonable  ground  to  be- 
lieve the  person  arrested  guilty  of  such  offense,  and  may 
detain  him  until  a  legal  warrant  can  be  obtained."  The  testi- 
mony shows  that  Woods  was  the  sheriff  of  Hitchcock  county ; 
that  he  had  been  informed  by  telegraph  that  the  horses  in  pos- 
session of  the  plaintiff  and  Belmont  had  been  stolen,  and  find- 
ing them  in  their  possession  certainly  was  sufficient  to  lead 
him  to  believe  that  they  were  the  thieves.  He  therefore  Avas 
justified  in  attempting  to  arrest  them.  In  saying  this  we  do 
not  intend  to  modify  the  opinion  in  Slimncrmaii  v.  State,  14 
Keb.,  5G8 ;  17  K.  W.  Rep.,  115.  A  person  may  resist  an  iin- 
lawful  attempt  at  arrest,  and  if  necessary,  rather  than  submit, 
may  lawfully  kill  the  person  making  it ;  that  is,  there  must  be 
a  cause  for  making  the  arrest, —  a  crime  committed,  and  rea- 
sonable ground  to  believe  that  the  person  sought  to  be  arrested 
committed  the  offense.  When  these  conditions  exist,  the  law 
clothes  any  person  with  power  to  make  the  arrest  until  a  Avai*- 
rant  can  be  obtained.  As  these  conditions  existed  in  this  case, 
the  attempt  of  Woods  to  arrest  the  plaintiff  Avas  not  unlawful 
and  is  no  justification  for  tiie  murder.  In  addition  to  this,  it 
is  apparent  that  the  plaintiff  was  expecting  to  meet  Woods,  as 
there  is  evidence  tending  to  show  that  on  the  day  preceding 
the  murder,  when  some  one  mentioned  the  name  of  Wood, 
both  Belmont  and  the  plaintiff  placed  their  hands  on  their  re- 
volvers. Some  one  then  asked,  "  What  Wood  ? "  Just  then 
Lawyer  Wood  of  the  town  came  up,  and  some  one  called  him 
by  name,  when  Belmont  and  the  plaintiff  went  away ;  evi- 
dently showing  that  they  supposed  the  person  spoken  of  was 
the  sheriff  of  that  name. 

3.  Misconduct  of  the  district  attorney  in  speaking  of  the 
plaintiff  to  the  jury  as  "Billy  the  Kid,  or  Jesse  James  sort 
of  a  cow-boy."  The  plaintiff,  in  his  testimony,  freely  stated 
that  he  had  been  tending  stock  in  New  Mexico  and  on  the 
plains ;  that  he  cnrried  two  revolvers  and  a  butcher-knife,  and 
that  his  comparion,  Belmont,  carried  four  revolvers.  It  is  also 
apparent  tlat  the  plaintiff  displayed  his  weapons  with  some- 
thing approaching  braggadocio;  and,  in  fact,  by  his  conduct 


\ 


HAILE  f.  STATE. 


99 


justified  the  district  attorney  in  speaking  of  him  in  the  way  he 
did.  Peaceable  and  law-abiding  men  do  not  find  it  necessary, 
in  a  peaceable  community,  to  load  themselves  down  with 
deadly  Avcapons,  and  their  conduct  is  open  to  criticism  when 
they  do  so.  There  was  no  error,  therefore,  in  using  the  words 
conri)lainod  of. 

4.  Objections  are  made  to  the  instructions ;  but  it  would  sub- 
serve no  good  purpose  to  review  them  at  length,  as  we  find  no 
error  in  them.  It  is  very  clear,  from  the  evidence,  that  the 
plaintiff  intended  to  kill  Woods,  or  any  one  who  attempted  to 
arrest  him,  and  that  in  pursuance  of  that  intention  the  shots 
Avero  fired  by  him,  and  that  they  were  the  cause  of  the  death ; 
thus  making  deliberate  and  premeditated  murder. 

The  plaintift  has  had  a  fair  trial,  and  there  is  no  doubt  of 
his  guilt,  and  there  is  no  material  error  in  the  record.  The 
judgment  is  affirmed. 

Judgment  affirmed. 


IIaile  V,  State. 

(38  Ark.,  564.) 

Concealed  weapons. 


CAUityiNO  PISTOLS  — Act  of  April  1,  1881,  constitutional.— Sections  1 
iiiul  2  of  the  act  of  April  1,  1881,  prohibiting  tlie  carrj-ing  of  army 
pistols,  except  uncovered  and  in  the  hand,  is  not  unconstitutional. 


En-or  to  Pope  Circuit  Court.  Hon.  "W.  D.  Jacoway,  Circuit 
Judge. 

Ilailo  was  convicted  in  the  circuit  court  of  Pope  county,  for 
can-ying  a  pistol,  upon  the  following  agreed  facts  : 

"  On  the  20tli  day  of  September,  1881,  in  the  county  of 
Pypc  and  state  of  Arkansas,  the  defendant  did  carry  uncov- 
ered, and  buckled  around  his  waist,  but  not  uncovered  and  in 
his  hand,  a  large  revolving  pistol,  known  as  the  Colt's  army 
pistol,  and  such  as  is  used  in  the  army  and  navy  of  the  United 
States,  when  ho  was  not  an  officer ;  and  said  carrying  was  not 
under  the  directions  of  an  officer,  and  when  he  was  not  upon 
a  journey  nor  upon  his  own  premises." 

This  was  all  the  evidence.    He  appealed. 


100 


AMERICAN  CRIfflNAL  REPORTS. 


G.  B.  Moore,  attorney-general,  for  the  plaintiff  in  error,  cites 
Act  April  10, 1881,  sections  2  and  4;  Acts  1881,  p.  102. 

Eakix,  J.  The  defendant  below  was  charged  bofoi'e  a  jus- 
tice of  the  peace  with  the  offense  of  carrying  a  pistol,  contrary 
to  the  statute,  and  upon  conviction  appealed  to  tlio  circuit 
court. 

lie  was  then  tried,  de  novo,  and  convicted  upon  the  agreed 
state  of  facts  contained  in  the  reporter's  statement,  and  lined 
$50.    From  this  judgment  he  appeals. 

The  proof  shows  all  the  essential  elements  of  the  offense,  as 
defined  by  section  2  of  the  act  of  April  1,  1881,  which  pro- 
hibits the  wearing  or  carrying  any  such  pistol  as  is  used  in  the 
army  or  navy  of  the  United  States,  in  any  manner,  except  un- 
covered and  in  the  hand,  save  under  the  circumstances  which 
in  this  case  did  not  exist. 

The  appellant  has  no  brief,  but  Ave  suppose  his  exceptions 
refer  to  the  validity  of  the  act  as  unconstitutional. 

The  lirst  two  sections  are  complete,  in  tliemselves,  to  consti- 
tute and  prohibit  the  offense,  and  may  stand  without  reference 
to  otlier  sections  of  the  act,  concerning  which  no  opinion  is 
now  expressed.  The  question  is,  Can  the  legislature  regulate 
the  motle  of  carrying  any  arms  which  the  citizens  have  the 
constitutional  riglit  to  keep  and  bear  for  their  common  defense  ? 
We  have  decided  that  it  may  to  some  extent,  which  means 
that  it  may,  in  a  reasonable  manner,  so  as,  in  effect,  not  to 
nullify  the  right,  nor  materially  embarrass  its  exercise. 

The  constitutional  provision  sprung  from  the  former  tyranni- 
cal practice,  on  the  part  of  governments,  of  disarming  the 
subjects,  so  as  to  render  them  powerless  against  oppression.  It 
is  not  intended  to  afford  citizens  the  means  of  prosecuting 
more  successfully  their  private  broils  in  a  free  government. 
It  would  be  a  perversion  of  its  object,  to  make  it  a  protection 
to  the  citizen,  in  going,  with  convenience  to  himself,  and  after 
his  own  fashion,  prepared  at  all  times  to  inllict  death  upon  his 
fellow-citizens,  upon  tlie  occasion  of  any  real  or  imaginary 
wrong.  The  ''  common  defense  "  of  the  citizen  does  not  require 
that.  The  consequent  terror  to  timid  citizens,  with  the  counter 
violence  which  Avould  be  incited  amongst  the  more  fearless, 
Avould  be  worse  than  the  evil  intended  to  bo  remedied. 


rights. 
Tlio  cc 


HAILE  V.  STATE.  101 

The  legislature,  by  the  law  in  question,  has  sought  to  steer 
between  such  a  condition  of  things  and  an  infringement  of 
constitutional  rights,  by  conceding  the  right  to  keep  such  arms, 
and  to  bear  or  use  them  at  will,  upon  one's  own  premises,  and 
restricting  the  right  to  wear  them  elsewhere  in  public,  unless 
they  be  carried  uncovered  in  the  hand.  It  must  be  confessed 
that  this  is  a  very  inconvenient  mode  of  carrying  them  habitu- 
ally, but  the  habitual  carrying  does  not  seem  essential  to 
"  common  defense."  Tlie  inconvenience  is  a  slight  matter  com- 
pared Avith  the  danger  to  the  Avhole  community,  Avhicli  Avould 
result  from  the  common  practice  of  going  about  with  pistols  in 
a  belt,  ready  to  be  used  on  every  outbi-eak  of  ungovernable 
passion.  It  is  a  police  regulation,  adjusted  as  wisely  as  the 
legislature  thought  possible,  with  all  essential  constitutional 
riglits. 

Tlie  constitutional  right  is  a  very  valuable  one.  "We  would 
not  disparage  it.  A  condition  of  things  Avithin  the  experience 
of  men,  still  very  young,  illustiates  the  importance  of  keeping 
alive  in  the  mind,  and  well  defined,  these  old  landmarks  of 
Saxon  liberty.  "  Semj)cr  paratiis "  is  a  good  motto.  Yet  if 
every  citizen  may  keep  arms  in  readiness  upon  his  place,  may 
render  himself  slcilful  in  their  use  by  practice,  and  cany  them 
upon  a  journey  Avithout  let  or  hiiulrance,  it  seems  to  us,  thci 
essential  objects  of  this  particular  clause  of  the  VAW  of  Rights 
Avill  be  preserved,  althougli  the  citizen  be  required  to  carry 
them  uncovered  and  in  tlie  hand,  otf  his  own  premises,  if  he 
should  deem  it  necessary  to  carry  them  at  all. 

The  clausCj  upon  this  point,  of  the  Tennessee  Bill  of  Rights,  is 
similar  to  ours,  except  that  it  expressly  reserves  to  the  legisla- 
ture the  power,  ''  by  hiAV,  to  regulate  the  Avearing  of  arms,  Avith 
a  view  to  prevent  crime."  Wo  think  this  reservation  a  matter 
of  superabundant  caution,  inserted  to  prevent  a  doubt,  and 
that,  unexpressed,  it  Avould  result  from  the  undefined  ]iolice 
powers  inherent  in  all  governments,  and  as  essential  to  their 
existence  as  any  of  the  muniments  of  the  Bill  of  Rights.  ( >nly 
the  legislature  must  take  care  that,  in  regulating,  it  does  not 
destroy,  nor  materially  interfere  Avitli  the  objects  of  the  consti- 
tutional provision. 

A  Tennessee  laAV,  passed  under  this  constitution  in  1871,  pro- 
hibiting the  carrying  of  any  army  weapon,  except  openly  and 


102  AMERICAN  CRIMINAL  REPORTS. 

in  the  hand,  was  hekl  constitutional.  State  v.  Welburne,  7  Jere 
Baxter,  57.  AVe  think  the  first  and  second  sections  of  our  act 
of  ISSl  as  free  from  objection. 

Tliore  need  be  no  fear  from  anything  in  these  sections,  that 
the  citizen  may  not  always  have  arjns,  and  be  skilled  in  their 
propter  use,  whenever  the  common  defense  may  require  him  to 

take  them  up.  .  „.        , 

AJjivmed. 

jTOTE.— A  merchant  who  buys  a  pistol  for  a  sample,  and  carries  it  in  his 
pocket  from  one  store  to  another  for  the  pmpose  of  liaving  it  packed  witli 
other  goods,  may  show  such  facts  to  rebut  the  presumption  of  the  statute, 
that  possession  is  prima  fade  evidence  of  conceahnent.  State  v.  Gilbert, 
87  N.  C,  527. 


State  v.  Hill  and  Blake. 

(58N.  H.,475.) 

CorJCEAMNO  DEATH  OF  CHILD.— The  crime  of  endeavoring  to  privately  con- 
ceal the  death  of  a  bastard  child,  in  violation  of  Gen.  St.,  ch.  2.")(i,  sec.  8, 
may  be  committed,  althou.j;]!  the  facts  are  frona  necessity  made  known 
to  some  one  who  is  requested  to  keep  them  secret. 

Indictment  of  Mrs.  Ilill,  upon  Gen.  St.,  ch.  2r)('>,  sec.  8,  for  l)oing 
privately  delivered  of  a  bastard  child,  and  endeavoring  ])rivately 
to  conceal  its  death  and  the  cause  thereof ;  and  of  j\Ir.  Blalce  as 
an  accessory.  The  defendants  lived  together,  but  were  not 
married.  AVhcn  IMrs.  Hill  was  delivered  of  the  child,  ^Ii's.  C, 
a  neigld:)or,  at  Blake's  recjuest,  came  to  the  defeiulant's  house 
to  remler  assistance ;  was  there  inforuied  1)V  J»lalvc  ol"  the  facts ; 
Avas  requested  by  hiui  to  keep  the  nuitter  secret ;  saw  tlie  cliild 
dead  in  tlie  presence  of  the  defendants ;  cut  the  uuibilical  cord ; 
atlvised  Mrs.  Hill  to  send  for  a  physician,  but  she  refused  to 
have  any  one  else  called  in.  No  clothing  had  been  prepared 
for  the  child;  and  Blake  buried  the  body  in  the  cellar.  Sub- 
ject to  the  defendants'  exception,  the  court  instructed  the  jury 
that  Mrs.  CVs  knowledge,  obtained  from  the  defendants,  would 
not  necessarily  prevent  a  conviction;  that  tho  defendants 
anight  be  guilty,  although  they  did  not  conceal  the  facts  from 
everybody ;  that  the  crime  consists  in  the  intent  and  endeavor 


STATE  V.  HILL  AND  BLAKE. 


103 


to  conceal ;  and  that  the  jury  should  consider  all  the  evidence, 
including  the  fact  that  Mi'3.  C.  was  called  in,  and  the  circum- 
stances under  which  she  was  called.  Verdict  against  the 
defendants.    Bill  of  exceptions. 

Blab'  c6  Burleigh,  for  the  defendants. 

The  object  of  the  statute  is,  to  prevent  the  concealment  of 
evidences  of  infanticide.  In  Peafs  Case,  1  East,  P.  C,  229,  it 
was  held  that  the  presence  of  any  second  person,  even  an  accom- 
plice, negatived  the  charge  of  concealment ;  and  this  case  was 
afterwards  overruled  only  where  the  second  person  was  an 
accomplice.  2  Arch.,  128.  If  the  information  given  by  the 
defendants  to  one  innocent  person  does  not  disprove  the  charge 
of  concealment,  the  law  cannot  determine  how  many  must  be 
informed  in  order  to  avoid  a  violation  of  the  statute. 

Farr,  solicitor  for  the  state. 

The  endeavor  to  conceal  the  death  is  the  essence  of  the  of- 
fense. If  absolute  concealment  were  necessary,  conviction 
would  bo  impossible.  Success  in  the  attempt  is  safety  from 
punishinont,  even  if  the  death  was  by  murder.  The  instruc- 
tions given  to  the  jury  were  correct.  2  Arch.,  128,  n.;  2  Whar- 
ton, Cr.  L.,  sec.  1235. 

Doe,  C.  J.  The  gist  of  the  crime  is  not  a  concealment  of 
the  death  and  the  cause  thereof,  but  an  attempt  to  so  conceal 
them  that  they  may  not  come  to  light.  Such  a  concealment 
may  be  attempted  by  one  who  is  unable  to  keep  knowledge  of 
the  facts  from  others  whose  assistance  is  necessarily  called  for, 
and  upon  whoni  secrecy  is  enjoined.  With  these  limitations, 
knowledge  of  the  facts  may  be  communicated  to  others  by  one 
who  is  making  every  prudent  effort  of  concealment,  amount- 
ing to  such  an  endeavor  as  the  statute  was  designed  to  prevent. 
A  reasonable  regard  for  the  mother's  health  and  life  might 
have  required  aid  from  the  neighbor  who  was  enlisted  in  the 
safe-keeping  of  the  secret. 

Exceptions  overruled. 

Clauk,  J.,  did  not  sit. 

Note.— Tho  statute  of  Arkansas  provides:  "If  any  woman  shall  en- 
deavor privately,  eitlier  by  herself  or  the  procurement  of  others,  to  conceal 
the  death  of  any  issue  of  her  body,  male  or  female,  that  it  may  not  como 


104 


AMERICAN  CRIMINAL  REPORTS. 


to  light,  although  it  cannot  be  proved  that  it  was  murdered,  every  such 
mother  sliall  suffer  the  same  punishment  as  for  manslaughter. 

"  Nothing  in  tlie  last  preceding  section  sliall  be  so  construed  as  to  prevent 
such  mother  from  being  indicted  for  the  murder  of  such  bastard  child." 

In  Sullivan  v.  The  State,  30  Ark.,  64,  the  court  held  tliat,  construing  the 
sections  together,  and  giving  them  both  hai-monious  effect,  tho  fii-st  section 
must  be  undci-stood  as  if  the  word  bastanl  wore  used  in  it;  it  must  be  sup- 
pUed  by  intendment.  And,  therefore,  that  an  indictment  which  omitted  to 
allege  that  the  cliild  was  a  bastai'd,  whose  death  tlie  mother  was  chai-ged 
with  attempting  to  conceal,  was  bad. 


State  v.  Day. 

(55Vt.,  510.) 

Confession:  Evidence — Inducement  —  Practice. 

1.  Confession  siade  under  projase.— The  sheriff  and  state's  attorney 

talked  with  the  respondent  while  in  jail.  Tlie  sheriff  first  testilied  that 
no  inducements  to  confess  were  hold  out,  but  ;iftcrwards  syiiil  "that  he 
presumed  he  and  the  state's  attorney  both  told  the  respondent  it  would 
be  better  for  her  to  tell  the  whole  story,  and  the  punishment  would  bo 
likely  to  be  lighter."    Held,  that  his  testimony  was  not  atlniissible. 

2.  Same. —  When  there  is  no  conflicting  testimony  as  to  what  tho  induce- 

ment was,  the  decision  of  the  court  below  may  be  revised  by  the  supreme 
court. 


Information  filed  by  the  state's  attorney  for  stealing.  Trial 
by  jury,  December  term,  1882,  Itoss,  J.,  presiding.  Ycrdiet, 
guilty.  Questions  of  evidence  and  practice  stated  in  the 
opinion. 

Ilarry  Blodgeit  and  Henry  G.  Lie,  for  the  state. 
El'mJia  May  and  M.  Montgomery,  for  the  respondent. 

The  opinion  of  the  court  was  delivered  by 

Veazey,  J.  This  is  an  information  for  stealing  a  horse, 
■wagon,  harness  and  buffalo  robe.  Numerous  exceptions  were 
taken  on  the  trial,  but  the  only  one  which  we  are  all  agreed 
must  be  sustained  is  that  to  the  admission  of  the  evidence  tend- 
ing to  show  a  confession  by  the  respondent.  It  appears  that 
while  she  was  under  arrest  and  in  jail  in  Sherbrooke  in  Canada, 
she  was  visited  by  the  sheriff  and  state's  attorney,  who  there 


STATE  V.  DAY. 


105 


had  conversation  with  her.  The  sheriff  was  sworn  as  a  wit- 
ness by  the  state,  and  testified  first  that  on  one  occasion  when 
he  visited  the  respondent  with  the  state's  attorney,  no  induce- 
ments to  confess  Avere  held  out  to  her  by  either  of  them,  but 
afterwards  said  "  that  he  presumed  he  and  tlio  state's  attorney 
botli  told  respondent  it  would  be  better  for  her  to  tell  the 
whole  story,  and  the  punishment  would  be  likely  to  be  lighter." 
Tliis  was  not  contradicted.  Objection  was,  therefore,  made  to 
tlie  witnpss'  testifying  to  what  she  said;  but  the  objection 
was  overruled,  and  the  witness  was  allowed  to  testify  to  the 
conversation  which  tended  to  show  admissions  of  guilt,  to  all 
which  the  respondent  excepted.  She  Avas  quite  J'oung,  in  jail, 
away  from  friends,  and  without  counsel  to  advise  her.  We 
think  the  admission  of  this  evidence  Avas  a  Adolation  of  the 
settled  rule  in  this  state,  "  that  a  confession  must  never  be  re- 
ceived in  evidence  Avhcn  the  respondent  has  been  influenced 
by  any  threat  or  promise."  The  discussion  of  the  question  by 
the  late  Chief  Justice  Pierpoint,  in  State  v.  Walker^  31  A^t., 
300,  is  so  applicable  to  this  case  it  is  sufiicient  to  refer  to  that 
opinion. 

Another  question  is  made,  that  the  judgment  of  the  county 
court,  that  the  confession  Avas  A'oluntary  and  the  evidence 
should  be  admitted,  is  conclusive  and  cannot  be  revised  by  this 
court.  . 

The  same  question  AA'as  raised  in  State  v.  ^Vall'cl\  sxqyra;  and 
Ave  think  the  true  view  Avas  there  expressed  to  the  effect, 
tliat  when  the  testimony'  as  to  the  promise,  threat  or  induce- 
ment is  conflicting,  and  the  court  must  pass  iq)on  the  character 
and  Aveight  of  the  testimony  upon  each  side,  in  order  to  deter 
mine  Avhetlicr  the  confession  is  voluntary  or  not,  the  decision 
tliei-eon  is  final.  But  in  a  case  like  this,  Avhere  there  is  no  con- 
flict in  the  testimony  or  dispute  about  the  facts,  the  decision 
of  tlie  county  court  admitting  the  testimony  may  be  revised  in 
this  court.    State  v.  PheJps,  11  Yt.,  110. 

Tlie  judgment  of  the  county  coui't  reversed,  new  trial  granted; 
and  the  case  renuinded. 


106 


AMERICAN  CRIMINAL  REPORTS. 


m. 


*s^" 


5'^, 


BucKEicE  V.  The  People. 
(110  lU.,  29.) 


Constitutional  law: 


Jury  of  the  vicinage  —  Offeme  committed  near 
county  line. 


I 


Jury  seuvice  confined  to  the  county.—  There  is  no  authority  in  any 
statute  for  the  selection  of  grand  and  petit  jurors  in  one  county  to  serve 
in  another  countj'. 

As  TO  KIOHT  OF  TRIAL  BY  JURY;  AND  IN  VHHAT  COUNTY  A  PERSON 
CHARGED  WITH  CRIME  MUST  BE  TRIED.— Tlie  right  of  trial  by  jury, 
guarantied  by  the  constitution  to  one  accused  of  crime,  includes  the 
right  cf  being  tried  by  jiu'ors  selected  from  the  county  in  which  the 
offense  is  alleged  to  have  been  committed. 

3.  Section  5,  division  10,  of  the  Criminal  Code,  in  so  far  as  it  authorizes  a 

party  to  be  tried  for  an  offense  committed  entirely  within  one  county, 
but  one  hundred  rods  from  the  county  Une,  in  the  adjoining  county,  is 
unconstitutional  and  void. 

4.  There  is  a  class  of  offenses  that  may  be  committed  by  a  pai-ty  being  in 

one  county,  upon  a  person  or  thing  being  at  the  same  time  in  another 
county,  when  the  offense  may  not  inaptly  be  delined  as  having  Iwvn 
committed  in  either  county;  and  offenses  committed  on  the  county  line, 
or  so  near  thereto  as  that  the  distance  therefrom  is  inappreciable,  may 
with  proprietj'  be  regarded  as  having  been  committed  in  either  county, 
and  by  doing  so  no  one  is  deprived  of  any  constitutional  riglit. 

5.  But  where  the  entire  offense  is  committed  within  one  county,  and  at  an 

appreciable  distance  from  the  county  line,  as  in  tliis  case,  at  a  distance 
of  seventy  rods,  the  party  accused  cannot  bo  indicted  and  tried  in  an- 
other county  for  that  offense. 

Appeal  from  the  Circuit  Court  of  Kane  County ;  tlio  Hon. 
C.  AV.  Upton,  Judge,  presiding. 

Ifessrs.  liuhcns,  MaGqfei/  db  Ames,  for  the  appellant. 

A  citizen  of  this  state  can  be  tried  for  a  criminal  olfense 
only  in  the  county  or  district  where  the  offense  has  been  com- 
mitted.   Const,  of  1870,  art.  2,  sees.  5,  9. 

Tlie  statute  providing  that  "  where  an  offense  sliall  be  com- 
mitted within  one  hundred  rods  of  a  county  line,  it  may  be  so 
alleged,  and  the  trial  may  be  in  either  county  "  (sec.  390  of  the 
Criminal  Code),  is  in  direct  contravention  of  the  constitutional 
guaranties  relating  to  trials  by  jury,  and,  therefore,  void. 
Anmfroi^g  v.  State,!  Coldw.,  ZZ%{Swarth  v.  Kimball,  43 
Mich.,  143;  State  v.  Saiojer,  50  N.  II.,  175;  Wheeler  v.  State,  2i 
Wis.,  52;  Oshoni  v.  State,  24  Arlc,  029. 

The  word  "  district,"  in  article  2,  section  9,  of  the  constitu- 


BUCKRICE  V.  THE  PEOPLE. 


lOT 


tion,  does  not  include  a  bolt  of  one  hundred  rods  in  another 
county  from  which  no  jui'ors  are  drawn.  Weyrich  v.  The 
People,  89  111.,  90, 

The  first  constitutional  provision  which  we  invoke  against 
the  operation  of  this  statute  is  section  5  of  article  1  of  the 
constitution  of  1870 :  '•  The  right  of  trial  by  juiy,  as  hereto- 
fore cujoycd,  shall  remain  inviolate."  The  meaning  of  this 
constitutional  provision  has  been  held  to  be  that  the  common 
law  mode  of  trial  by  jury  must  remain  inviolate.  Petition  of 
Ferncr,  103  1)1,  3(57 ;  Ward  v.  Fai-well,  97  id.,  593.  And  it 
was  held  that  the  mode  of  trial,  as  it  existed  at  the  time  of  the 
adoption  of  the  constitution,  was  preserved  by  this  provision. 
Poss  V.  L'vlng,  14:  111.,  171. 

There  can  be  no  question  that  at  common  law  no  man  could 
be  taken  out  of  the  county  Avliere  the  offense  was  committed, 
and  \vliere  he  resided,  to  an  adjoining  or  distant  county.  4 
Blackstone's  Com.,  319.  And  this  right  of  trial  by  juiy  in- 
cludes the  grand  as  well  as  the  petit  jury,  and  both  must  bo 
drawn  from  the  county  Avliore  the  offense  was  committed.  4 
Blackstone's  Com.,  303 ;  Ilallam's  Const.  Hist.,  15,  iO ;  Bacon's 
Abr.,  title  "Juries;"  2  Hawkins'  Pleas  of  the  Crown,  300,  ch. 
25,  soc.  28. 

The  courts  of  other  states  have  held  acts  of  the  legislature 
authorizing  the  trial  of  pci*sons  out  of  the  county  in  which  the 
offense  was  committed  as  unwarranted  by  the  constitution  and 
void.  Sicarth  v.  KlmlxiU,  43  Mich.,  413;  Paul  v.  Detroit,  32 
id.,  108;  We>/)'lc7t,  v.  The  People,  89  111.,  90;  Annstt'ong  v. 
State,  1  Coldw.,  338 ;  0,sljorn  v.  State,  24  Ark.,  G29  ;  Wheeler  v. 
State,  24  Wis.,  52;  State  v.  Saioijer,  5G  N.  II.,  175;  State 
V.  Denton,  G  Coldw.,  539 ;  Kirh  v.  State,  1  id.,  315. 

The  framers  of  our  constitution  did  not  content  themselves, 
however,  with  the  provision  above  cpiotcd.  They  gave  a  still 
inoro  definite  expression  of  their  determination  to  uphold  this 
constitutional  guaranty  by  declaring :  "  In  all  criminal  prose- 
cutions the  accused  shall  have  the  right  .  .  .  to  a  S])eed3'' 
puljlic  trial  by  an  impartial  jury  of  the  county  or  district  in 
which  the  offense  is  alleged  to  have  been  committed."  Const. 
1870,  art.  2,  sec.  9. 

Mr.  Franh  Croshj  and  2L\  Terrence  E.  Pyan,  state's  attor- 
ney, for  the  people. 

The  statute  attacked  is  no  novel  experiment  in  legislation. 


108 


AMERICAN  CRIMINAL  REPORTS. 


It  has  existed  among  the  legislative  enactments  of  sister  states 
for  many  years,  and  has  frequently  been  confirmed  by  their 
judicial  tribunals.  Commonwealth  v.  Glllon,  2  Allen,  502 ;  The 
People  V.  Harris,  45  Barb,,  494 ;  State  v.  BoUnsoii,  14  Minn., 
447 ;  The  People  v.  Davis,  50  N".  Y.,  95. 

"  The  right  of  trial  by  jury  "  may  be  regulated  by  tbe  legis- 
lature in  certain  ways,  provided  its  fundamental  requisites  are 
not  impaired  or  destroyed, —  that  is,  provided  the  number  com- 
posing the  jury,  its  unanimity  and  its  impartiality  are  not  vio- 
lated.   Proffatt's  Trial  by  Jury,  sec.  100,  p.  149. 


Me.  Justice  Scholfield  delivered  the  opinion  of  the  court. 

A])pellant  sold  spirituous  liquors  in  violation  of  chapter  43, 
entitled  "  Dram-shops,"  in  Cook  count}^,  but  at  a  point  Avithiu 
seventy  rods  of  the  line  between  that  county  and  Kane  county. 
For  this  he  was  indicted  by  a  grand  jury  of  Kane  county,  and 
tried  and  convicted  in  the  circuit  court  of  that  countv.  lie 
objected  on  the  trial  to  the  jurisdiction  of  that  court,  and  by 
plea  and  motion  raised  the  question  of  its  power  to  render  any 
judgment  against  him  for  the  offeuse  so  committed.  The  action 
of  the  court  is  claimed  to  be  authorized  b}^  section  5,  division 
10,  of  chapter  38,  entitled  "  Crimiual  Code,"  of  the  Eevised 
Statutes  of  1874,  page  400,  which  reads  as  follows :  '""Where 
an  offense  shall  be  committed  on  a  county  line,  or  within  one 
hundred  rods  of  the  same,  it  may  be  so  alleged,  and  the  trial 
may  be  in  either  county  divided  bj'^  such  line."  Undoubtedly, 
if  valid,  this  is  broad  enough  to  embrace  the  present  case ;  but 
counsel  for  appellant  insist  that  so  much  of  it  as  assumes  to 
authorize  the  trial  of  a  party  in  one  county  for  an  olf ense  com- 
mitted in  another  county  (no  right  in  that  regard  having  been 
waived),  is  unconstitutional  and  void,  and  this  presents  the 
only  question  for  our  determination. 

It  Avill  to  observed  no  county  lines  are  changed  by  this  en- 
actment, and  no  provision  is  made  for  the  selection  of  jurors 
beyond  the  county  line,  and  within  the  one  hundred  rods 
thereof,  and,  we  may  add,  there  is  no  authority  in  any  statute 
for  the  selection  of  grand  and  petit  jurors  in  one  county  to 
serve  in  another  county.  See  R.  S.,  1874,  ch.  78,  entitled 
"  Jurors,"  p.  630.  "^^ 

The  constitution  of  1870  declares  in  section  5,  article  1: 
"  The  right  of  trial  by  jury,  as  heretofore  enjoyed,  shall  re- 


BUCKRICE  V.  THE  PEOPLE. 


109 


main  inviolate."  And  in  section  9,  ai'ticle  2 :  "In  all  criminal 
prosecutions  the  accused  shall  have  the  right  .  .  .  to  a 
speedy  public  trial,  by  an  impartial  jury  of  the  county  or  dis- 
trict in  which  the  offense  is  alleged  to  have  been  committed." 
Su])stantially  the  same  provisions  were  in  the  constitutions 
of  ISIS  and  ISiS,  and  they  have  been  hcM  to  guaranty  the 
right  of  trial  by  jury,  in  conformity  with  the  principles  of  the 
common  law  as  it  was  enjoyed  at  the  adoption  of  the  constitu- 
tion. Jioss  V.  Irving,  14  111.,  171;  Ward  v.  J^arwell,  d7  id., 
rm-,  Petit ioti  of  Ffrrler,  10;{  id.,  P.07.  And  this  right  of  trial 
by  jury  included  that  of  l)cing  tried  by  jurors  selected  from 
the  county  in  which  the  offense  is  alleged  to  have  been  com- 
mitted. Weyrlch  v.  The  l^eojyle,  SO  III.,  90.  It  Avas  the  settled 
common  law  doctrine  that  jurors  in  one  county  were  not  com- 
petent to  pass  upon  the  guilt  or  innocence  of  a  party  in  regai'd 
to  a  crime  alleged  to  have  been  committed  by  him  in  another 
county.  See  3  Eeeves'  Hist,  of  English  Law,  135;  2  Hale's 
Pleas  of  the  Crown,  2(i4 ;  2  I  f awkins'  Pleas  of  the  Crown,  103 ; 
4  Hlackstone's  Com.  (Sharswood's  ed.),  349,  *  350 ;  1  Wharton  on 
Crini.  Law  (Tth  ed.),  277. 

There  is  a  class  of  offenses  committed  by  a  party  being  in 
one  county,  iipon  a  person  or  thing  being  at  the  same  time  in 
another  county,  where  the  offense  m.ay  not  inaptly  be  defined 
as  being  committed  in  either  county,  and  we  are  not  to  be  un- 
derstood as  questioning  but  that  offenses  comuiitted  on  the 
county  line,  or  so  near  thereto  that  the  distance  thei'efi'om  is 
inappreciable,  may  Avith  propriety  be  regarded  as  committed  in 
either  county,  and  that  by  so  holding  no  one  is  deprived  of  any 
constitutional  right;  but  it  is  obvious  such  cases  are  not  analo- 
gous to  the  present  case.  Here  the  entire  offense  is  committed 
within  one  county,  at  a  distance  of  seventy  rods  from  the 
county  line.  It  is  not  only  possible,  but  probable,  that  many 
persons  reside  within  one  hundred  rods  of  the  county  line 
who  are  competent  jurors  in  their  own  county,  but  none  of 
whom,  in  any  possible  contingency,  would  be  competent  to  sit 
as  such  upon  the  trial  in  Kane  county.  And  so,  if  it  could  be 
said  this  is  a  new  district  for  criminal  purposes,  it  is  unconsti- 
tutional, in  that  there  is  no  provision  authorizing  it,  but,  on  the 
contrary,  there  is  a  positive  provision  excluding  the  selection 
of  juiics  in  so  much  of  the  territory  as  is  included  in  this  strip 


110 


AMERICAN  CRDHNAL  REPORTS. 


of  one  hundrecl  rods  in  Cook  county.  But  if  it  may  be  salt!  the 
districts  simply  remain  as  they  were,  then  it  would  seem  too 
plain  to  admit  of  argument,  the  constitution  is  violated  by  au- 
thorizing parties  committing  offenses  wholly  in  one  county  to 
be  indicted  and  tried  therefor  in  another  county.  If  this  may 
be  done  as  to  one  hundred  rods  of  territory,  why  may  not  it 
be  done  as  to  one  mile?  And  if  it  may  bo  done  as  to  one  mile, 
wli}'-  may  it  not  be  done  as  to  the  entire  county,  and  thus  drag 
men  for  trial  to  Cook  or  Jo  Daviess  county  for  offenses  com- 
mitted in  Alexander  or  Pulaski  county? 

It  may  be  that  it  would  work  no  inconvenience,  and  be 
greatly  promotive  of  a  rigid  enforcement  of  the  Criminal  Code, 
if  a  strip  of  two  hundred  rods  in  Avidth  on  all  county  lines 
(one  hundred  rods  on  each  side)  might  be,  for  the  purjiosc  of 
criminal  trials,  regarded  as  Avithin  either  county;  but  it  is 
enough  for  the  present  to  say  this  is  not  warranted  by  the  con- 
stitution, and  its  mandate  is,  that  "  in  all  criminal  prosecutions 
the  accused  shall  have  the  right  to  a  speedy  public  trial,  by  an 
impartial  jury  of  the  county  or  district  in  which  the  offense  is 
alleged  to  have  been  committed."  Wo  have  no  more  riglit  to 
tlisrcgai'd  this  mandate  as  to  one  hundred  rods  than  as  to  tliat 
many  miles,  and  our  opinion  of  its  wisdom  or  convenience  can- 
not in  the  sliglitest  affect  the  question  of  its  obligatory  force. 
Like  questions  were  presented  and  like  conclusions  reached  in 
Swarth  v.  KhribaU,  43  ]\[ich.,  443 ;  Armstrojig  v.  State,  1  Coldw., 
338;  Xiric  v.  State,  id.,  34.j;  State  v.  Denton,  6  id.,  530;  Wheeler 
V.  State,  24  "Wis.,  52;  Oshot^n,  v.  State,  24  Ark.,  029;  State  v. 
love,  21  W.  Va.,  783  (45  Am.  R.,  570). 

The  constitutions  of  Massachusetts  and  !N"ew  York  do  not 
contain  like  provisions  to  those  in  our  constitution  which  we 
have  been  considering,  and  hence  the  cases  cited  by  counsel  for 
the  people  from  those  states  are  not  relevant.  As  to  the  decis- 
ion cited  from  Minnesota,  we  are  unable  to  concur  in  the  rea- 
soning by  which  it  is  sustained,  notwithstanding  the  high 
respect  we  entertain  for  the  ability  and  learning  of  those  com- 
posing the  tribunal  by  which  it  was  announced. 

The  judgment  is  reversed. 

Judgment  reversed. 

Note.— In  State  ex  rcl.  Drown  v.  Stewart,  Circuit  Judge,  60  Wis.,  587,  it 
is  held  that  the  statute  providing  that  offenses  committed  witliin  one  Lun- 


STATE  I'.  STEWART. 


Ill 


(Ircd  rods  of  the  tlivuling  line  between  two  counties  may  be  prosecutofl  and 
punished  in  either,  is  not  in  violation  of  sec.  7,  art.  1,  Const.,  seciiring  to  the 
accused  the  right  to  a  trial  "  by  an  impartial  jury  of  the  county  or  district 
wliorein  the  offense  shall  have  been  committed;  which  county  ordtHtrict 
sliiiU  liave  been  previously  ascertained  by  law."  See,  also,  People  v.  Davis, 
m  N.  Y.,  05. 


Statk  t.  Stewakt. 

(89  N.  C,  563.) 

CoNSTiTtmoNAL  LAW:  Trial  by  jury  —  Waivcr. 

1.  A  trial  by  jury  in  a  criminal  action  cannot  be  waived  by  the  accused. 

2.  On  trial  of  an  indictment  for  an  fissault  and  battery,  a  jury  trial  was 

waived,  and  the  court,  by  request,  found  the  facts  .and  declared  the  Law 
arising  thei'eoo.  Held,  that  such  a  procedure  is  not  warranted  by  law, 
and  the  case  will  be  remanded  for  trial. 

Attonieij-General,  for  the  state. 
No  counsel  for  the  defendant. 


Asm:,  J.  It  is  a  fundamental  principle  of  the  common  law, 
declared  in  "  ]\[agna  Charta,"  and  again  in  our  Bill  of  Eights, 
that  "  no  person  shall  be  convicted  of  any  crime  but  by  the 
unanimous  verdict  of  a  jury  of  gooa  and  lawful  men  in  open 
court."    Art.  1,  §  13. 

Tlie  only  exception  to  this  is,  where  the  legislature  may  pro- 
vide other  means  of  trial  for  petty  misdemeanors  with  the  right 
of  appeal.  Proviso  in  same  section.  This  is  not  one  of  the 
potty  misdemeanors  embraced  in  the  proviso ;  and  if  it  Avas,  no 
such  means  of  tri.al  as  that  adopted  in  this  case  has  been  pro- 
vided b}^  the  legislature.  The  court  here  has  undertaken  to 
serve  in  the  double  capacity  of  judge  and  jury,  and  try  the 
defendant  without  a  jury,  which  it  had  no  authority  to  do, 
even  with  the  consent  of  the  prisoner.  1  Bish.  Cr.  Law, 
§759. 

The  action  of  the  court  in  this  respect  was  in  violation  of 
the  constitution,  and  in  subversion  of  a  fundamental  principle 
of  the  common  law.    State  v.  Jfoss,  2  Jones,  GG. 

There  is  error.    The  case  must  bo  remanded  to  the  superior 


112 


AMERICAN  CRIMINAL  REPORTS. 


court  of  Stokes  county,  that  it  may  be  proceeded  witli  by  a 
jury  trial  according  to  tlio  regular  practice  of  the  court.   Error. 

Reversed  and  remanded. 

Note.—  In  Tlie  State  v.  Carman,  03  Iowa,  130,  defendant  was  indicted  for 
an  jissault  with  intent  to  rape,  which  is  felony.  The  defendant  waived,  in 
writiiif?,  liis  riglit  to  a  jury  trial,  and  after  a  trial  by  the  court  and  a  finding 
of  guilty,  the  defendant  claimed  that  he  had  no  power  to  waive  such  right. 
Under  the  Code  of  Criminal  Procedure  of  that  state  it  is  provided  that  "  an 
issue  of  fact  must  be  tried  by  a  jurj'  of  the  county  in  which  the  indictment 
is  found,  unless  a  change  of  venue  has  been  awarded."  Adams,  J.,  deliver- 
'  (ig  the  majority  opinion  of  the  court  (Seevers,  J. ,  dissenting),  says :  "  If  the 
language  of  the  statute  were  less  imperative  than  it  is,  the  adjudications 
would  support  us  in  reaching  the  same  conclusion.  Hill  i'.  The  People,  10 
Mich.,  331;  State  v.  Maine,  27  Conn.,  281;  Bond  v.  State,  17  Ark.,  290;  Wil- 
son V.  State,  10  Ark.,  001;  League  v.  State,  30  Md.,  257;  iViUiamn  v.  State,  12 
Ohio  St.,  022;  People  v.  Smith,  9  Mich.,  193;  United  States  v.  Taijlor,  3 
McCraiy,  500.  We  think  the  judgment  of  the  district  court  must  bo  re- 
versed." 

Seevers,  J.,  in  support  of  the  point  that  a  personal  right  or  statutory  privi- 
lege confen-ed  on  a  person  accused  of  crime  may  be  waived  by  the  person 
so  accused,  cited  the  following  cases:  The  State  \\  Ilnglies,  4  Iowa,  't'A: 
The  Slate  V.  Groome,  10  id.,  308;  The  State  v.  Ostrander,  18  id..  -135;  The 
State  V.  Rpid,  20  id.,  413,  and  The  State  v.  Fclton,  25  id.,  07.  "  The  ('onstitu- 
tion  provides  that  the  accused  '  shall  have  the  right  ...  to  i)o  con- 
fronted wltli  the  witnesses  against  him.'  This  language  is  just  as  mandatory 
as  that  contained  in  the  statute  in  question,  and  yet  it  was  held  in  The  State 
V.  Poison,  29  Iowa,  133,  that  a  personal  privilege  only  was  conferred  on  the 
accused,  which  he  could  waive,  and  that  such  waiver  did  not  affect  the 
jurisdiction  of  the  court.  The  constitution  provides  that '  the  riglit  of  trial 
by  jury  shall  remain  inviolate.'  Every  one  admits  that  this  meiuis  a  jury 
composed  of  twelve  men.  But  it  was  held  in  The  State  v.  Kaufman,  51 
Iowa,  578,  that  such  a  jury  might  be  Avaived  by  the  accused,  and  the  trial 
be  had  by  a  jury  comj)osed  of  eleven  men,"  etc. 


State  v.  Amekt. 

(12  R.  I.,  04.) 

Constitutional  law:  Statute  void  in  part. 

A  statute  which  prohibits  the  sale  and  the  keeping  for  sale  of  intoxicat- 
ing liquors,  and  which  contains  no  exception  in  favor  of  importers 
whose  imported  liquors  remain  in  the  original  packages,  or  of  dealers 
holding  outstanding  licenses,  although  void  as  to  such  importers,  and 
perhaps  void  as  to  Ucense  holders,  is  valid  as  to  otiiers.  If  a  law  which 
is  constitutional  under  certain  limitations  exceeds  those  limitations,  it 
may  still  be  operative  witliin  them  and  void  only  for  the  excess. 


Constit 

DURFKI 

ing  is,  W 
tutional  ? 
and  quali 
intoxicati 
tlie  sclliu; 
porters  ii 
that,  inas 
is  unconsi 
plies  to  ii 
totally  so 
lie  is  not 
he  is  coi 
original  \. 

That  il 
for  sale  a; 
of  the  su] 
cense  cas^ 
285.  But 
porters,  is 
all  other  ] 
that  a  sta 
still  be  va 
connected 
tended  to 
Const.  Lir 

And  so, 
offenses  p 
stitutiona] 
offenses ; 
to  past  CO 
be  entirel; 
Cooley's 
Hartung  \ 
Ur,  50  N. 
V.  Fowler, 

These  c 

the  case  a 

Vol 


STATE  V.  AMERY.  1|$ 

Constitutional  questions  certified  to  the  supreme  court. 

DuRFKK,  C.  J.  The  question  submitted  to  us  in  this  proceed- 
ing is,  AVhctlicr  chapter  70  of  the  General  Statutes  is  consti- 
tutional? CMuiptcr  70  prohibits,  subject  to  some  exceptions 
and  qualifications,  the  selling  and  keeping  for  sale  of  certain 
intoxicating  liquors.  Jt  does  not  except  from  the  prohibition 
tJie  selling  and  keeping  for  sale  of  imported  liquors  by  the  im- 
porters in  the  original  packages.  The  I'cspondent  contends 
tliat,  inasmuch  as  the  chapter  does  not  make  this  exception,  it 
is  unconstitutional  and  void,  and  not  only  so  in  so  far  as  it  ap- 
plies to  imported  liquors  sold  or  kept  for  sale  as  aforesaid,  but 
totally  so,  and  consequently  so  in  respect  to  himself,  though 
ho  is  not  an  importer  and  does  not  claim  that  the  liquors  which 
he  is  complained  of  for  selling  were  imported,  and  in  the 
original  packages. 

That  the  chapter  is  void  as  to  importers  selling  or  keeping 
for  sale  as  aforesaid  cannot  be  doubted,  in  view  of  the  decision 
of  the  supreme  court  of  the  United  States  in  the  so-called  li- 
cense cases.  5  IIow.  (U.  S.),  uOi ;  State  v.  Robinson,  49  Me., 
285.  Eut  because  no  exception  is  made  in  favor  of  such  im- 
porters, is  it  therefore  void,  as  the  respondent  contends,  as  to 
all  other  persons  ?  We  think  not.  It  is  perfectly  well  settled 
that  a  statute  Avhich  is  unconstitutional  or  void  in  part  may 
still  be  valid  as  to  the  residue,  unless  the  parts  are  so  intimately 
connected  that  it  caimot  be  supposed  that  one  part  was  in- 
tended to  be  enforced  independently  of  the  other.  Cooley's 
Const.  Lim.,  *78. 

And  so,  also,  a  statute  which  is  ex  j)ost  facto  as  to  acts  or 
ofTenses  previously  committed,  and  therefore  as  to  them  uncon- 
stitutional cud  void,  may  yet  be  valid  as  to  subsequent  acts  or 
offenses ;  and  a  statute  which  is  unconstitutional  and  void  as 
to  past  contracts,  because  it  impairs  their  obligation,  may  yet 
be  entirely  valid  as  to  contracts  entered  into  after  its  passage. 
Cooley's  Const.  Lim.,  *180;  lioss  Case,  2  Pick.,  105,  172; 
Hartung  v.  The  People,  22  N.  Y.,  95 ;  People  v.  City  of  Eoches- 
ter,  50  N.  Y.,  525 ;  Golden  v.  Prince,  3  Wash.  C.  C,  313 ;  Moo^e 
V.  Foxohr,  1  Hemp,,  536 ;  Baker  v.  Brameti,  6  HiU,  47. 

These  cases  are  not  distinguishable  in  point  of  principle  from 
the  case  at  bar.  The  doctrine  of  them  is,  that  if  a  law,  which 
Vol.  IV— 8 


114 


A5IERICAN  CRIMINAL  REPORTS. 


is  constitutional  under  certain  limitations,  exceeds  those  limita- 
tions, it  may  still  be  operative  within  its  legitimate  sphere  and 
void  only  for  the  excess.  The  doctrine  is  applicable  in  t\w 
case  at  bar,  and  under  it  chapter  79  should  be  sustained,  except 
in  so  far  as  it  goes  beyond  the  proper  limits. 

Indeed  the  statutes  of  Ehodc  Island  and  Massachusetts, 
under  Avliicli  two  of  the  cases  reported  in  5  How.  (U.  S.),  504, 
arose,  did  not  contain  exceptions  in  favor  of  importers,  and 
yet  convictions  under  them  were  sustained  by  the  supreme 
court  of  the  United  States. 

It  is  true  the  objection  here  presented  does  not  appear  to 
have  been  explicitly  made ;  but  the  fact  that  it  was  not  made 
by  the  counsel,  considering  who  they  Avcre,  nor  suggested  by 
the  court,  is  in  itself  almost  equivalent  to  a  decision  that  the 
objection  lias  nothing  in  it.  In  Commonwealth  v.  KhnhiU,  24 
Pick.,  8r)!>,  the  objection  was  taken  and  was  declared  to  be  un- 
tenable, tliough  in  that  case  the  statute  was  sustained  on  the 
broader  ground  that  it  was  not  unconstitutional  or  void  in  any 
particular.  l>ut,  said  Chief  Justice  Shaw,  "supposing  the  law 
could  be  construed  to  be  repugnant  to  the  constitution  of  the 
United  States,  in  so  far  as  it  prohibited  the  sale  of  imported 
spirits  by  the  importer  in  the  original  packages,  it  would  bo 
void  thus  far  and  no  farther,  and  in  all  other  respects  conform- 
ing to  the  acknowledged  power  of  the  state  government,  it 
Avould  be  in  full  force."  See,  also,  State  v.  /Snoio,  3  R.  I.,  04. 
AVe  think  the  rule  as  thus  stated  is  correct,  though  doubtless 
there  are  cases  where  a  diiTcn^ent  rule  has  been  declared.  We 
must  therefore  decide  that  cha[?ter  TO  is  not  totally  unconstitu- 
tional and  void  for  not  reserving  "  the  right  to  importers  to  sell 
in  the  original  package,"  but  that  on  the  contmry  it  is  coni^ti- 
tutional  and  valid,  notwithstanding  the  oiiiission  of  any  suclt 
reservation,  as  applied  to  all  persons  except  such  importers. 

The  Siimo  course  of  reasoning  applies  with  the  same  effect  to 
the  other  point,  namely,  that  chapter  7!)  contains  no  exception 
in  favor  of  the  holders  of  unexpired  licenses^  Supposing,  what 
we  do  not  decide,  that  the  cluj.pter  is  unconstitutional  as  to  th(^ 
holders  of  such  licenses,  still  it  is  not  on  that  account  unconsti- 
tutional as  to  any  jiersons  but  them. 

The  respondent  objects  that  everything  alleged  in  a  com- 
plaint under  the  statute  may  be  true,  and  yet  the  accused  be 


J 


innocent, 
to  the  CO 
this  proc 
rule  is,  tl 
it  is  for  Ii 
in  the  coi 
ercnce  in 

Eil.mur, 

for  defon 

Note.—  ' 
In  construi 
an  cnactmc 
anything  ct 
it  nugatory 
rel.  V.  Kcm 
governing  i 
tional,  that 
unless  the  j 
the  otlier,  o 
pose  that  tl 
jKiraniount 
effeet  of  th 
or  ])arts  \\a.\ 
tivo.  If  th 
the  nianifes 
acc'ordancc 
of  a  sound 
tions,  page 
out,  that  \v) 
in  accoi-ilan 
that  which  a 
road,  12  Lcj 
tional  ami  v 
V.  State,  40 
though  the 
peace  exclu 
nnconstituti 
dealing  witl 


STATE  V.  AMERY. 


115 


innocent.  This  is  an  objection  to  the  form  of  complaint,  not 
to  the  constitutionality  of  the  statute.  It  cannot  be  made  in 
this  proceeding.  We  may  remark,  however,  that  the  general 
rule  is,  that  if  the  accused  is  entitled  to  any  special  exemption, 
it  is  for  him  to  show  it  in  defense,  and  it  need  not  be  negatived 
in  the  complaint,  unless  it  is  expressed  or  incorporated  by  ref- 
erence in  the  enacting  or  prohibitory  clause  of  the  statute. 

Edmund  S.  Ilophins,  assistant  attorney-general,  for  ]ilaintiff. 
W'dliam  B.  Beach,  Charles  E.  Gorman  and  Henry  W.  Allen, 
for  defendant. 

Note. —  When  aiid  how  far  a  statute  will  he  declared  unconstitutional. — 
In  construing  statute.?  courts  aim  to  ascertain  the  true  meaning  and  spirit  of 
an  enactment  from  a  consideration  of  the  whole;  and  if  they  discover  in  it 
anjthing  equivocal  or  unconstitutional,  they  eliminate  the  same  or  declare 
it  nugatory,  and  do  not  sufler  it  to  vitiate  the  entire  act.  In  The  People  ex 
rcl.  V.  Kcnncij  ct  at,,  00  N.  Y.,  21)4,  the  court  of  appeals  states  the  principle 
governing  such  cases  as  fellows:  "Where  part  of  a  statute  is  unconstitu- 
tional, that  fact  does  not  authorize  tlie  court  to  adjudge  the  remainder  void, 
unless  the  provisions  are  so  interdependent  that  one  cannot  operate  without 
the  other,  or  so  related  in  substance  and  object  that  it  is  impossible  to  sup- 
pose that  the  legislature  would  have  pa.ssed  the  one  without  the  other."  The 
jiaraniount  riuestion  for  the  courts  to  consider  is  whether  the  meaning  and 
('ffec:t  of  the  statute  will  I'emain  uniin])aired  after  the  unconstitutional  part 
or  ])arts  have  been  subjected  to  a  searching  analysis  and  declared  inopera- 
tive. If  the  void  parts  can  be  scjparated  from  the  good,  without  changing 
the  manifest  intention  of  the  law-making  power,  courts  may  prune  them  n 
accordance  with  the  general  canons  of  legal  i>xegesis,  and  the  suggestic  ns 
of  a  scnuid  and  cautious  discretion.  In  Cooley  on  Constitutional  Limita- 
tions, page  178,  it  is  said:  "  If,  when  the  unconstitutional  portion  is  stricken 
out,  that  which  remains  is  complete  in  itself,  and  capable  of  being  executed 
in  accordance  with  the  apparent  legislative  intent,  wholly  independent  of 
tliat  which  was  rejected,  it  must  be  sustained."  In  Franklin  Countij  v.  Rail- 
road, 12  Lea(Tonn.),  531,  it  is  held  that  pai-t  of  a  statute  may  be  unconstitu- 
tional and  void,  and  the  rest  be  valid,  if  the  parts  are  separable.  In  Morrison 
V.  State,  40  Ark.,  448,  the  same  principle  is  maintained.  It  is  held  that 
though  the  first  section  of  the  act  of  March  15,  1879,  giving  justices  of  the 
peace  exclusive  jurisdiction  of  certain  misdemeanors,  had  been  declared 
unconstitutional,  yet  it  had  no  effect  whatever  upon  the  second  section, 
dealing  witii  appeals,  and  this  continued  in  full  force  and  effect. 


116 


AMERICAN  CRIMINAL  REPORTS. 


In  ke  Ziebold. 

(U.  S.  C.  C,  23  Fod,  Rep.,  791.) 

Constitutional  law  :  Due  process  of  Imo — Kansas  act  of  March  7, 1885  — 

Habeas  corpus. 

Wliere  a  person  is  imprisoned  for  refusing  to  testify  or  appear  before  a 
county  attorney  in  a  proceeding  under  section  8  of  the  act  of  Marcli  7, 
1885,  wliich  is  amendatory  of  the  act  prohibiting  the  manufacture  and 
sale  of  intoxicating  liquors,  he  is  restrained  of  his  liberty  without  "  dins 
process  of  law,"  within  the  meaning  of  the  fourteenth  amendment  to 
tlie  constitution  of  the  United  States,  and  entitled  to  be  released  on 
habeas  corpus  issued  by  the  United  States  circuit  court. 

The  petitioner  was  committed  to  jail  for  refusing  to  testify 
before  the  county  attorney,  and  sued  out  a  writ  of  habeas  cor- 
pus.   Further  facts  appear  in  the  opinion. 

B.  P.  Wagge7ier  and  Thomas  P.  Fenlon,  for  petitioner. 
W.  D.  Gilbert,  county  attorney,  for  the  state. 

FosTEE,  J.  The  petitioner  in  this  case  alleges  that  he  is  im- 
prisoned and  deprived  of  his  liberty,  in  violation  of  the  pro- 
visions of  the  fourteenth  amendment  to  the  constitution  of 
the  United  States.  That  amendment  provides,  among  otlior 
things,  that  no  state  shall  deprive  any  person  of  life,  liberty 
or  property  without  "  due  process  of  law." 

The  federal  courts  and  judges  are  authorized,  among  other 
causes,  to  issue  the  writ  of  haleas  corpus  for  a  person  in  cus- 
tody and  imprisoned  in  violation  of  the  constitution,  or  of  {• 
law  or  treaty  of  the  United  States.  E.  S.,  §  753.  The  juris- 
diction of  this  court  to  issue  the  writ  and  hear  the  case  de- 
pends upon  the  truth  of  the  averments  in  the  petition,  and 
therefore  the  jurisdiction  of  this  court  and  the  main  question 
are  so  inseparably  connected  together  that  the  determination 
of  one  must  determine  the  other.  It  appears  from  the  petition 
and  the  return  to  the  writ  that  the  petitioner  is  held  in  custody 
and  imprisoned  by  the  sheriff  of  Atchison  county  by  virtue  of 
a  commitment  issued  to  him  by  the  county  attorney,  commit- 
ting the  petitioner  to  the  county  jail  for  refusing  to  obey  a 
subpoena  issued  by  said  attorney,  and  refusing  to  be  sworn  and 
give  testimony  before  him  in  proceedings  under  the  eiglith 
section  of  the  act  of  the  legislature  of  Kansas,  approved 


Ifarch  7, 
ing  the  ir 
is  admitt( 
ticcordan( 
is  fairly  \ 
a])pear  oi 
iiigs  is  re 
within  th 

The  fin 
])rocess  oJ 
l)rcscribe( 
But  such 
iinty  mei 
deprive  a 
shall  cho( 
adjudicati 
the  land 
oi'iginatet 
operate  a; 
Murray's 
XI.  New  0 
310.  In 
in  the  cor 

"They 
liominatei 
modes  tlu 
ture,  its  e 
other  wa 
mean  thai 
wliom  its 
its  jurisdii 
virtue  of 
iuiotlier  c 
law,  vioh 
he  acts  in 
the  state's 
or  the  coi 

These  v 
terms  by 
same  gem 


IN  RE  ZIEBOLD. 


117 


Ifarch  7, 1885,  being  an  act  amendatory  to  the  act  prohibit- 
ing the  manufacture  and  sale  of  intoxicating  liquors,  etc.  It 
is  admitted  that  the  county  attorney  acted  and  proceeded  in 
ticcordance  with  the  provisions  of  the  law ;  and  the  question 
is  fairly  presented  whether  a  person  imprisoned  for  refusing  to 
a])pear  or  testify  before  the  county  attorney  in  such  proceed- 
ings is  restrained  of  his  liberty  without  "  due  process  of  law," 
within  the  meaning  of  the  constitution  of  tlie  United  States. 

The  first  matter  of  inquiry  is  the  meaning  of  the  term  "  due 
jM'ocess  of  law."  If  it  has  no  broader  meaning  than  process 
prescribed  by  act  of  tlie  legislature,  it  is  the  end  of  the  case. 
But  such  a  construction  would  render  the  constitutional  guar- 
anty mere  nonsense,  for  it  would  then  mean  no  state  shall 
(lci)rive  a  person  of  life,  liberty  or  property,  unless  the  state 
shall  choose  to  do  so.  It  has  repeatedly  and  uniformly  been 
adjudicated  that  the  terms  "due  process  of  law"  and  "law  of 
the  land "  have  a  broad  and  comprehensive  meaning,  and 
originated  in  that  great  bill  of  rights,  Magna  Charta,  and 
operate  as  a  restriction  on  each  branch  of  civil  government. 
Murray's  Lessee  v.  Jlohol'en  Zand  Co.,  18  How.,  272 ;  Davidson 
V.  M'w  Orleans,  96  U.  S.,  107 ;  Fx  parte  Virginia,  100  U.  S., 
31G.  In  the  last-cited  case  the  court,  speaking  of  these  words 
in  the  constitution,  says : 

"  They  have  reference  to  the  actions  of  a  political  body  de- 
liominated  a  state,  by  Avhatever  instruments  or  in  whatever 
modes  that  action  may  be  taken.  A  state  acts  by  its  legisla- 
ture, its  executive,  or  its  judicial  authorities.  It  can  act  in  no 
otlier  way.  The  constitutional  provisions,  therefore,  must 
mean  that  no  agency  of  a  state,  or  of  the  officers  or  agents  by 
wliom  its  powers  are  executed,  shall  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws.  Whoever,  by 
virtue  of  a  public  position  under  a  state  government,  deprives 
another  of  pi'operty,  life  or  liberty,  without  due  process  of 
law,  violates  .  .  .  the  constituticmal  inhibition,  and,  aa 
he  acts  in  the  name  of  and  for  the  state,  and  is  clothed  with 
tlio  state's  power,  his  act  is  that  of  the  state.  This  must  be  so, 
or  tlie  constitutional  provision  has  no  meaning." 

These  words  in  the  constitution  have  been  defined  in  various 
terms  by  different  courts,  but  all  the  definitions  tend  to  the 
same  general  idea.    Mr.  Justice  Edwards  has  said  in  one  case : 


1X8 


Al^IERICAN  CRIMINAL  REPORTS. 


"  Due  process  of  law  undoubtedly  means  in  the  duo  course 
of  legal  proceedings,  according  to  those  rules  and  fonns  which 
have  been  established  for  the  protection  of  private  rights." 
Westervelt  v.  Grcgcj,  12  N.  Y.,  209. 

Mr.  Justice  Johnson,  of  the  supreme  court  of  the  United 
States,  says : 

"  As  to  the  words  from  JVIagna  Charta,  incorporated  in  the 
constitution  of  Maryland,  after  volumes  spoken  and  written 
witli  a  view  to  their  exposition,  the  good  sense  of  mankind  lias 
at  last  settled  down  to  tliis  :  That  they  were  intended  to  secure 
the  individual  from  the  arbitrary  exercise  of  the  power  of  gov- 
ernment, unrestrained  by  the  established  principles  of  private 
rights  and  distributive  justice."  Banh  of  ColumVm  v.  OJcehj, 
4  Wheat.,  235. 

Tliis  dclinition  has  been  several  times  approved  by  that  court. 
U.  S.  V.  Crulkshank,  92  U.  S.,  554 ;  Ilurtado  v.  California,  110 
U.  S.,  527 ;  S.  C,  4  Sup.  Ct.  Rep.,  111. 

Judge  Cooley  says : 

"  Due  process  of  law  in  each  particular  case  means  such  an 
exertion  of  the  powers  of  govern'.nent  as  the  settled  maxims  of 
law  permit  and  sanction,  and  under  such  safeguards  for  the 
protection  of  individual  rights  as  those  maxims  prescribe  for 
the  class  of  cases  to  whicli  the  one  in  question  belongs." 
Cooley,  Const.  Lim.,  35G ;  Wynehamcr  v.  The  People,  13  N.  Y., 
432 ;  Taijlor  v.  Porte)',  4  Hill,  145. 

With  this  general  principle  established,  and  the  moaning  of 
those  words  defined,  the  dilliciilty  remains  of  applying  the 
principle  to  any  particular  case.  In  the  case  of  Ilurtado  v.  Cali- 
fornia, supra,  Mr.  Justice  Matthews,  in  a  very  learned  and  ex- 
haustive opinion,  speaking  for  the  court  (Mr.  Justice  Harlan 
dissenting),  held  that  the  words  "  due  process  of  law,"  in  tliis 
amendment,  do  not  necessarily  require  an  indictment  by  a  grand 
jury  in  a  prosecution  by  a  state  for  murder;  and  in  J/»n;i  y. 
Illinois,  94  TJ.  S.,  115,  the  chief  justice  says : 

"  A  person  has  no  property,  no  vested  interest,  in  any  rule 
of  the  common  law.  Tiiat  is  only  one  of  the  forms  of  the 
nmnicipal  law,  and  is  no  more  sacred  than  any  other.  .  .  . 
The  law  itself,  as  a  rule  of  conduct,  may  be  changed  at  tlie 
will,  or  even  the  mere  whim,  of  the  legislature,  unless  pre- 
vented by  constitutional  limitations." 


IN  BE  ZIEBOLD. 


119 


And  in  Wall'cr  v.  Sauvinet,  92  TJ.  S.,  90,  the  court  held  that 
this  amendment  did  not  guaranty  the  right  of  trial  b}'  jury  in 
all  cases  in  the  state  courts.  These  cases  tend  to  establish  the 
doctrine  that  the  rules  and  forms  known  to  the  common  law, 
in  judicial  proceedings  not  affecting  the  ultimate  rights  of  the 
party,  are  not  necessarily  guarantied  to  a  person  under  the 
constitution ;  and  it  has  long  been  established  that  the  remedial 
process  of  the  law  may  be  altered  at  the  will  of  the  legislature, 
so  it  does  not  impair  a  vested  right,  or  cut  off  tlie  remedy 
altogether.  The  words  '•  due  process  of  law,"  then,  must  be 
directed  at  something  deeper  than  the  mere  rules  and  forms  by 
which  courts  administer  the  law.  They  evidently  were  intended 
to  guaranty  and  protect  some  real  and  substantial  right  to  life, 
liberty  and  property,  as  tlie  ultimate  result,  and  probably  to 
prohibit  any  arbitrary  and  oppressive  proceedings  by  which  the 
individual  is  deprived  of  either.  There  are  certain  things  that 
are  manifestly  obnoxious  to  this  provision.  For  instance,  the 
property  of  one  pcison  cannot  be  taken  from  him  for  private 
use  and  given  to  anuvher,  even  though  he  is  compensated  for 
it,  and  is  given  every  opportunit}^  to  be  heard  through  all  the 
forms  and  solemnity  of  judicial  proceedings.  2\i>jlo)'  v.  Porter, 
4  Hill,  IJrO;  (.'ooley,  Con^>t.  Lim.,  357. 

Kor  can  a  ])erson  be  condemned  without  an  ojjportunity  to 
be  heard  and  make  his  defense,  although  he  may  be  guilty. 
Wlien  we  go  beyond  a  few  well  defined  landmarks  in  this 
direction  we  are  upon  a  broad  sea  of  uncertainty.  In  any  case, 
u'c  have  to  incpiire  if  the  person  is  imprisoned  in  violation  of  a 
due  course  of  legal  proceedings,  according  to  those  settled 
maxims,  rules  and  forms  established  for  the  protection  of 
private  rights  against  the  arbitrary  exercise  of  power,  unre- 
stricted by  established  principles  applicable  to  such  rights,  and 
to  the  administration  of  justice. 

By  section  1,  article  o,  of  the  constitution  of  Kansas,  the 
judicial  power  of  the  state  shall  be  vested  in  certain  courts 
therein  named,  and  such  otlier  courts,  inferior  to  the  supremo 
court,  as  may  be  provided  by  law.  Undoubtedly  the  legisla- 
tui'e  has  the  constitutional  right  to  establish  inferior  courts 
and  define  and  limit  tlieir  jurisdiction,  powers  and  proceedings. 
J  udicial  powers  may  bo  conferred  without  expressly  naming 


120 


AMERICAN  CRIMINAL  REPORTS. 


the  tribunal  a  court,  and  these  powers  may  be  confined  to  one  or 
more  subjects  of  adjudication.  They  may  be  very  limited  or 
very  extensive  in  their  scope,  and  I  am  not  prepared  to  say 
that  a  ministerial  officer  may  not  be  selected  to  perform  these 

tidicial  functions.  The  coroner  of  a  county  has  both  minis- 
It  ■  vl  and  judicial  duties  to  perform.  County  commissioners 
ha^  e  to  some  extent  both  duties  imposed  upon  them,  and  prob- 
ably the  same  is  true  of  a  sheriff  of  a  county.    That  the  duties 

npos  .1  tlie  county  attorney  under  the  eiglith  section  of  the 
act  in  eoiHi'c  crsy  ai'e  judicial  powers  must  be  admitted.  He 
is  to  hear  and  determine,  compel  the  attendance  of  Avitnesses 
by  subpoena  and  attachment,  and  to  punish  them  for  disobedi- 
ence to  his  writs.  The  power  of  courts,  actinj^  within  their 
jurisdiction,  to  punish  witnesses  for  contempt  is  a  necessary  and 
admitted  power.  It  goes  with  the  judicial  attribute,  and  with- 
out it  a  court  is  powerless  to  enforce  its  orders  or  protect  its 
dignity.  The  serious  objection  urged  to  the  law  under  consid- 
eration is  that  the  county  attorney  is  the  public  prosecutor  for 
the  state,  lie  is  the  informer  against  offenders,  and  on  his  in- 
formation parties  charged  with  crime  are  put  u})on  trial.  The 
judicial  powers  conferred  on  him  by  this  law  are  not  to  hear 
and  deterinuie  matters  in  which  he  stands  indifferent  between 
the  parties,  but  are  given  to  aid  and  assist  him  in  the  per- 
formance of  his  ministerial  duties,  and  have  no  otlier  purpose, 
making  the  judicial  powers  auxiliary  and  subordinate  to  the 
ministerial  duties,  and  are  given  to  him  as  a  means  by  which 
he  can  more  successfully  procure  evidence  to  institute  and 
carry  on  prosecutions;  and  in  this  respect  the  powers  given 
him  are  very  great,  and  in  the  hands  of  an  unscrupulous  man, 
stimulated  by  animosity  or  avarice,  could  be  used  as  an  instru- 
ment of  sore  oppression. 

On  the  mere  unsworn  statement  of  any  person,  and  without 
any  case  pending  before  him,  it  is  made  liis  duty,  under  sever 
penalties,  to  set  this  judicial  machinery  in  motion,  with  no  re 
striction  as  to  whom  he  shall  summon  before  him  to  testify, 
and  no  limitation  but  his  own  good  will  as  to  the  scojio  of  his 
investigation ;  fortified  by  a  power  to  exact  answers  to  any 
questions  he  sees  proper  to  ask,  almost  despotic  in  its  severity. 
The  witness  must  answer  the  questions  or  go  to  jail  for  con- 


tempt. 


March 


IN  RE  ZIEBOLD. 


121 


tempt.  It  may  be  answered  that  such  is  tl'.o  oaso  in  all  trials, 
but  there  is  this  wide  difference :  In  trials  in  opon  court  on  is- 
sues made  up  betAveen  the  parties,  the  relevancy  and  compe- 
tency of  the  question  is  submitted  to  the  court,  and  argument 
of  counsel  is  heard ;  the  riglits  of  the  witness,  as  well  as  the 
party,  are  discussed,  considered  and  decided.  And  what  makes 
the  power  given  by  this  law  still  more  dangerous  and  objec- 
tionable, is  that  the  law  makes  it  to  the  interest  of  the  judge 
(county  attorney)  to  find  evidence  of  an  offense  committed. 
Tie  is  offered  a  reward  to  excite  his  vigilance  and  cupidity,  and 
threatened  with  severe  punishment  if  he  fails  or  neglects  to 
faithfully  perform  these  dm  ies.  In  some  respects  these  duties 
ai'c  similar  to  those  of  a  grand  jury  and  court  comoined.  The 
proceedings  are  preliminary,  to  ascertain  if  there  is  a  probable 
cause  to  charge  the  party  with  the  offense.  But  a  grand  juror 
may  be  challenged  on  the  ground  that  he  is  a  prosecutor  or 
complainant  or  a  witness  upon  a  charge  coming  before  him  for 
investigation.  St.  1879,  p.  812,  §  79.  Nor  can  a  grand  jury 
issue  a  subpoena  for  a  Avitncss,  or  decide  the  competency  of  a 
question  asked,  or  punish  for  contempt.  These  matters  rest 
with  the  court.  Sees.  85-88.  This  provision  of  the  act  of 
March  7, 1885,  is  a  strange  combination  of  judicial  and  minis- 
terial duties,  aided  Avith  rewards  and  penalties,  and,  so  far  as  I 
have  been  able  to  ascertain,  is  an  anomaly  to  all  tlie  judicial 
proceedings  known  to  the  land.  It  attempts  to  unite  the  judi- 
cial Avitli  the  executive  branch  of  cIauI  goveriimcnt ;  and  Avlien 
the  law-making  power  and  the  power  Avhich  declares  and  ap- 
plies, as  Avell  as  that  Avhich  executes  and  administers  the  law, 
are  united  and  vested  in  one  person  or  body,  it  becomes  a 
despotic  and  not  a  constitutional  goA^ernment. 

Are  these  objections  suiRcient  to  justify  a  court  in  the  con- 
clusion tliat  a  person  restricted  of  his  liberty  under  these  pro- 
ceedings is  depriA'^ed  of  his  liberty''  Avithout  "  due  proco  3  of 
law  ? "  I  am  compelled  to  answer  in  the  affirmative.  I  believe 
no  precedent  can  be  found  for  the  application  and  use  of  judi- 
cial power  in  the  manner  and  for  the  purpose  contemplated 
by  this  act,  and  that  it  is  a  dangerous  innoA'ation  on  the  fixed 
naxims  and  rules  in  the  administration  of  justice,  established 
for  the  protection  of  priA^ato  rights.  In  this  conclusion  I  am 
also  sustained  by  a  recent  decision  of  Judge  Crozier,  of  the 


' 


122 


AMERICAN  CRIMINAL  REPORTS. 


first  judicial  district  of  this  state.    In  re  Belkr,  1  Kan.  Law  J., 
220. 

It  is,  therefore,  ordered  that  the  petitioner  bo  discharged 
from  custody. 

Note.— In  Twltcliell  v.  The  Commonwealth,  7  Wall.,  321,  which  was  a 
petition  f(jr  a  writ  of  oiTor  to  tlio  court  of  oyer  and  terminer  of  the  city 
and  county  of  Pliiladelphia,  and  the  supreme  court  of  Pennsylvania,  witli 
a  view  to  tlio  revision  of  a  judgment  of  the  former,  aflirmed  by  the  latter 
court,  which  condemned  the  petitioner  to  suffer  death  for  tlie  crime  of  mur- 
der. The  case  presented  was  that  the  constitution  of  the  United  Stater.,  by 
its  fifth  amendment,  ordains  that  no  person  shall  bo  held  to  answer  lor  a 
capital  crime,  nor  be  deprived  of  hfe,  etc.,  "without  due  process  of  law;" 
and,  by  its  sixth,  that  in  all  criminal  prosecutions  the-  accused  shall  enjoy 
the  right  '"to  be  informed  of  the  nature  and  cause  of  the  accusation,"  etc. 

With  these  provisions  of  the  constitution  in  force,  the  legislature  of  Penn- 
sylvania, by  a  statute  of  the  30th  March,  1800,  to  consjolidate,  amend  and 
revise  its  laws  relative  to  penal  proceedings  and  pleadings,  enacted  that, 
"  In  any  indictment  for  uuirder  or  manslaughter  it  shall  not  bo  necessary  to 
set  forth  the  manner  in  which,  or  the  means  by  which,  the  death  of  the  de- 
ceased was  caused,  but  it  shall  be  sufficient  in  every  indictment  for  murder 
to  charge  that  the  defendant  did  feloniously,  wilfully  and  of  bis  malice 
aforethought,  kill  and  murder  the  decca.sed."  Tlie  ])etition  set  forth  that, 
pending  tlic  suit,  the  petitioner  had  set  up  and  claimed  the  rights  and 
privileges  secured  him  under  said  amendments,  etc.;  that  t!ic  statute  above 
quoted  was  in  derogation  of  said  amendments.  Tiio  decision  of  the  court 
was  delivered  by  Mr.  Cliiof  Justice  Cliase,  and  in  the  course  of  it  he  said: 

"We  are  by  no  means  prejjared  to  say,  that,  if  it  were  an  open  question 
whether  the  fifth  and  sixth  amendments  of  the  constitution  apply  to  the 
state  governments,  it  would  not  bo  our  duty  to  allow  the  Avrit  aj^plied  for 
and  hear  argument  on  the  question  of  repugnaniy.  We  think,  indeed,  that 
it  would.  But  the  scope  and  application  of  these  amendments  are  no  hunger 
subjects  of  discussion  hero." 

To  show  that  these  ameudments  were  not  designed  as  limits  upon  the  state; 
governments  in  reference  to  their  own  citizens,  but  excilusively  as  restrictions 
uixin  federal  power,  the  learned  chief  justice  cite-i  Barron  v.  The  City  of 
Baltimore,  7  Peters,  273;  Fox  v.  Ohio,  5  How.,  434;  Smith  v.  The  State  of 
Maryland,  18  id.,  70;  and  Withers  v.  Bucldey  and  others,  20  id.,  90. 

Witli  those  constitutional  amendments  in  force,  and  the  uniform  and  un- 
broken line  of  decisions  of  the  supreme  federal  tribunal  declaring  that  they 
contain  no  expression  indicating  an  intention  to  apjily  them  to  state  govern- 
ments, the  fourteenth  amendment  to  the  constitution  was  adopted,  whicli 
ordains  that :  "  No  state  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  Unite;!  States;  nor  shall  any 
state  deprive  any  person  of  life,  liberty  or  pro]iert.>  vvlthout  due  process  of 
law,"  etc.  The  scope  and  aiijjlication  of  this  amendment  have  not  been 
definitely  ascertained  or  determined  by  the  courts.  Tlie  (piestion  was  dis- 
cussed with  great  learning  and  ability  in  the  Slaughter-House  Caseti,  10 
Wall.,  36,  but  as  the  court  was  nearly  equally  divided,  the  decision  in  that 


IN  RE  ZIEBOLD. 


123 


case  can  hardly  bo  regarded  as  a  precedent.  Much  of  the  decision  is  taken 
up  with  the  contention  as  to  the  status  of  American  citizenship.  But  it 
would  seem  that  it  can  make  little  difference  whether  the  object  of  the 
amendments  was  to  confer  citizenship  upon  the  ncgi'o  race  and  to  i)rotect  them 
against  hostile  legislation  of  the  states  or  not  —  since  their  language  is  broad 
enough  to  include  all  classes  of  citizens  —  it  would  bo  a  dangerous  rule  of 
construction  to  narrow  the  words  of  these  amendments  to  tlie  exclusion  of 
cases  which  those  words,  in  their  ordinary  acceptation,  would  comprehend. 
Tlic  logical,  and,  as  it  would  seem,  kresistible  conclusion  to  bo  drawn  from 
the  language  of  the  fourteenth  amendment  is  as  expressed  by  Mr.  Justice 
Bradley  in  liis  dissenting  opinion;  that  is :  "  That  the  (luostion  is  now  settled 
by  the  fourteenth  amendment  itself,  that  citizenship  of  the  United  States  is 
the  primary  citizenship  in  this  countxy,  and  that  state  eitizonship  is  secondary 
and  derivative,  dejjending  upon  citizenship  of  the  United  States  and  the 
citizen's  place  of  residence.  The  states  .have  not  now,  if  they  ever  had,  any 
power  to  restric^t  their  citizenship  to  any  classes  or  persons.  A  citizen  of 
the  United  States  has  a  perfect  constitutional  right  to  go  and  reside  in  any 
state  ho  chooses,  and  to  claim  citizenship  tlu'rein,  and  an  equalitj'  of  rights 
with  every  other  citizen;  and  the  whole  power  of  the  nation  is  pledged  to 
sustain  him  in  that  right.  Ho  is  not  bound  to  cringe  to  an}-  sujierior,  or  to 
pray  for  any  act  of  gi-ace,  as  a  means  of  enjoying  all  the  rights  and  privi- 
leges enjoyed  by  other  citizens.  And  when  the  spirit  of  lawlessness,  mob 
violence,  and  sectional  hate  can  bo  so  completely  repressed  as  to  give  full 
practical  effect  to  this  right,  we  shall  bo  a  happier  nation,  and  a  more  pros- 
perous one,  than  we  now  are.  Citizenship  of  the  United  States  ought  to  be, 
and,  according  to  the  constitution,  is,  a  sure  and  undoubted  title  to  equal 
rights  in  any  and  every  state  in  this  Union,  subject  to  such  regulations  as 
the  legislature  may  rightfully  prescribe.  If  a  man  bo  denied  full  equality 
before  the  law,  ho  is  denied  one  of  the  essential  rights  of  citizenship  as  a 
citizen  of  the  United  States." 

If  wo  owe  allegiance  to  the  United  States  it  follows  that  the  United  States 
owes  us  protection.  Even  under  tho  feudal  system  "  the  essential  principle 
of  a  lief  was  a  mutual  contract  of  support  and  fidelity.  Whatever  obliga- 
tions it  laid  upon  tho  vassal,  of  service  to  his  lord,  corresponding  duties  of 
protection  were  imposed  by  it  on  the  lord  towards  liis  vassal." 

It  is  provided  by  the  first  amendment  to  the  constitution  that  "congress 
shall  make  no  law  respecting  an  establishment  of  religion,  or  prohibiting 
tho  free  exercise  thereof."  According  to  tho  well-settled  rule  of  construc- 
tion as  applied  to  tho  fifth  and  sixth  amendments  above  referred  to,  this 
amendment  was  not  designed  "  as  a  limit  upon  tho  state  governments  with 
reference  to  their  own  citizens,"  but  exclusively  as  a  restriction  upon  the 
federal  power.  Therefore,  unless  I  can  look  to  the  federal  government, 
through  the  fourteenth  amendment,  tho  state  of  Illinois  may  set  up  a  state 
church,  compel  me  to  attend  it  and  to  pay  tribute  to  it.  This  new  charter 
of  liberty,  purchased  at  so  great  a  price,  ought  not  to  be  rendered  practically 
nugatory  by  narrow  and  restricted  constructions.  The  word  "  freeman"  in 
Magna  Charta,  although  it  had  a  well-defined  meaning  when  tliat  great 
eluuter  was  framed,  by  process  of  judicial  construction  was  extended  so  as 
to  include  every  British  subject. 


124 


AMERICAN  CRIMINAL  REPORTS. 


In  1879  the  state  of  Califomia  amended  its  constitution,  providing  tlint 
"  offenses  heretofore  required  to  be  prosecuted  by  indictment  shall  be  prose- 
cuted l)y  information,  after  examination  and  commitment  by  a  magistrate, 
or  by  iadictinont  with  or  without  such  examination  and  commitment,  as 
may  be  prescribed  by  law,"  etc.  And  it  was  held  by  the  supreme  court  of 
the  United  States,  Mr.  Justice  Hiu-lan  dissenting,  that  a  conviction  for  nmr- 
der  in  the  first  dcgiee  upon  such  infonnation  was  not  illegal  by  virtue  of 
tlio  clause  in  the  fourteenth  amendment  which  prohibits  the  states  from  de- 
priving any  person  of  life,  hberty  or  property  without  due  process  of  law, 
Hurtndo  v.  California,  110  U.  S.,  510.  See  cases  cited.  See,  also,  Pcnnoijer 
V.  Ncff,  95  U.  S.,  714;  Barbier  v.  Connolly,  113  U.  S.,  27;  In  re  Ah  Lee,  5 
Fed.  Rep.,  899. 


The  People  v.  Raymond. 

(96  N.  Y.,  88.) 

Construction:  Habitual  criminals'  act. 

1.  CONSTKCCnON  OF  PENAL   CODE   WITH  REFERENCE  TO  PERSISTENT  CRIMI- 

NALS.— The  provision  of  the  Penal  Code,  increasing  the  punishment 
where  the  offense  charged  is  a  second  offense,  applies  to  cases  where  the 
first  offense  was  committed  before  said  code  went  into  eff act.  The  first 
offense  is  simply  a  fact  in  the  past  liistory  of  the  criminal  to  be  taken 
into  consideration  in  proscribing  punishnment  therefor.  The  provision, 
tlierefore,  is  not  limited  in  its  application  by  tlie  provision  of  said  code 
<leclaring  that  none  of  its  provisions  apply  to  an  offense  committed  or 
act  done  before  it  went  into  effect. 

2.  Same. — Nor  is  the  provision  first  mentioned  limited  to  cases  where  the 

second  conviction  is  for  an  offense  of  the  s.ame  character  and  grade  as 
that  which  resulted  in  the  first.  Where,  therefore,  ''efendant  was  con- 
victed of  the  ci-ime  of  forgciy  in  the  first  degree,  charged  as  a  second 
offense,  and  it  appeared  that  he  had  been  previously  convicted  of  forgery 
in  the  third  degree,  held,  that  as  the  "  subsequent  crime  was  one  which, 
upon  the  first  conviction,  might  be  punished,  in  the  discretion  of  the 
court,  by  unprisoimient  for  life,"  it  being  the  second  conviction,  such  a 
punislunent  was  imperative  under  the  law. 

James  Johnston,  for  appellant. 
John  Vincent,  for  respondent. 

The  material  facts  are  stated  in  the  opinion. 

Finch,  J.  Many  of  the  objections  taken  to  the  conviction 
and  sentence  of  the  accused  admit  of  brief  answers.  There 
was  proof  tending  to  show  that  the  alleged  altered  coupon  was 
in  fact  altered ;  enough  at  least  to  carry  that  question  to  the 


that"' 


THE  PEOPLE  V.  UAYMOND. 


125 


jury  and  sustain  their  verdict  when  rendered.  That  there  was 
no  evidence  of  an  intent  to  defraud  on  the  part  of  the  prisoner 
is  maintained  on  tlie  ground  that  the  railroad  comjiany  could 
not  be  defrauded  by  the  payment  of  their  own  coupon,  although 
it  had  been  stolen  from  the  true  OAvncr.  But  the  bonds  and 
coupons  were  numbered  and  so  could  bo  identified,  and  the  evi- 
dence warrants  the  inference  that  notice  of  the  theft  had  been 
given;  and  a  payment  to  the  agent  of  the  thief,  induced  by  a 
forgery  of  the  number,  would  expose  the  debtor  to  a  second 
demand  from  the  true  owner.  To  the  claim  that  the  altered 
coupon  Avas  not  put  in  evidence,  the  answer  is  that  the  fact  is 
otherwise.  It  appears  to  have  been  attached  to  the  indictment, 
was  proved  to  have  been  one  of  the  twelve  in  the  prisoner's 
envelope,  and  was  afterward  made  the  subject  of  cross-exami- 
nation by  the  prisoner's  counsel.  That  no  offense  can  be  con- 
sidered a  second  offense  under  the  Penal  Code  unless  it  appears 
tliat  the  first  offense  charged  is  a  crime  under  such  code  by 
reason  of  section  719,  and  the  first  offense  hero  was  before  the 
code  went  into  operation,  is  a  contention  without  adequate 
foundation.  The  tirst  offense  was  not  an  clement  of  or  in- 
cluded in  the  second,  and  so  subjected  to  added  punishment, 
but  is  simpl}^  a  fact  in  tlio  past  history  of  the  criminal,  which 
the  law  takes  into  consideration  Avhen  jn'escribing  punishment 
for  the  second  offense.     That  only  is  punished. 

The  more  important  question,  however,  is  the  one  which 
bred  a  difference  of  opinion  at  the  general  term,  and  respects 
the  validity  of  the  sentence  impose<l  on  the  prisoner.  The 
proof  showed  that  his  first  offense  was  forgery  in  the  third  de- 
gree, for  which  he  was  sentenced  to  imprisonment  in  the  state 
prison  for  five  years,  which  was  the  extreme  limit  of  the  pen- 
alty before  the  code.  His  conviction  in  the  present  case  was 
for  forgery  in  the  first  degree,  for  which,  if  a  first  offense,  the 
penalty  prescribed  was  imprisonment  for  not  less  than  ten 
years,  and,  therefore,  might  be  for  life.  So  much  of  section 
688  of  the  Penal  Code  as  is  essential  to  our  purpose  provides 
that  "  a  person,  who,  after  having  been  convicted  within  this 
state  of  a  felony,  .  .  .  commits  any  crime  within  this  state, 
is  punishable  upon  conviction  of  such  second  offense  as  fol- 
lows: (1)  If  the  subsequent  crime  is  such  that,  upon  a  first 
conviction,  the  offender  might  be  punished,  in  the  discretion  of 


126 


AMERICAN  CRIMINAL  REPORTS. 


tho  court,  by  imprisonment  for  life,  ho  m-nM  bn  sontcnccd  to 
imprisonment  for  life;  and  (2)  if  tho  sulr^oriuent  crimo  is  such 
that,  ui)on  a  Ilr.st  conviction,  tlic  oifondcr  would  bo  punisliabic 
by  impi'isonniont  for  any  t(n'm  less  than  his  natural  life,  tlion 
such  person  must  be  sontcncod  to  imprisonment  for  a  term  not 
less  than  the  lon^^ost  term,  nor  more  than  twice  tho  longest 
term  proscribe;!  ui)on  a  first  conviction."  Hero  tho  prisoner, 
after  haviu'^'  connnittcd  a  felony  for  wliich  ho  had  been  con- 
victed, committed  tho  crime  of  forgery  in  the  first  degree. 
That  became  in  his  case  what  the  Penal  Code  denomin  ;  the 
"subsequent  crime."    That  is  of  such  character  that  vas 

a  first  conviction  of  the  prisoner  ho  miglit  bo  punishcti  in  tlio 
discretion  of  tho  court  by  imprisonment  for  life,  but  having 
been  previously  convicted  of  a  felony  tho  statute  makes  tlio 
life  penalty  no  longer  discretionary  but  imperative.  The  trial 
court  so  held  and  the  general  term  approved.  Tho  dissenting 
opinion  and  the  argument  here  go  on  the  ground  that  section 
688  was  meant  only  to  provide  for  cases  where  the  second  con- 
viction was  for  an  offense  of  the  same  chai-acter  and  grade  as 
that  which  resulted  in  the  first.  The  principal  reason  assigned 
is  that,  by  the  code,  "  potit  larceny,"  Avhich  is  now  but  a  mis- 
demeanor, may  have  constituted  tlie  first  offense,  and  that  the 
legislature  could  not  have  intended  that  because  of  a  previous 
misdemeanor  a  subsequent  felony  should  involve  ncces:sarily  an 
imprisonment  for  its  longest  term.  But  the  very  next  section 
(689)  shows  exactly  that  intention.  It  reads,  "  a  person  who, 
having  been  convicted  Avithin  this  state  of  a  misdemeanor, 
afterward  commits  and  is  convicted  of  a  felony,  must  bo  sen- 
tenced to  imprisonment  for  the  longest  term  prescribed  for  the 
punishment  upon  a  first  conviction  for  the  felony."  The  lan- 
guage of  tlio  code  makes  no  reference  to  second  offenses  of  the 
same  character  or  grade  with  the  first.  It  contains  no  such 
limitation,  and  we  think  none  such  Avas  intended.  Its  reason 
was  obviously  independent  of  any  such  similarity.  That  the 
accused  has  alreaily  been  convicted  of  a  felony  or  an  attempt 
to  commit  one,  or  of  a  "  petit  larceny,"  shows  that  punishment 
has  done  him  no  good;  that  no  reformation  was  effected;  that 
he  is  a  persistent  criminal,  toward  whom  mercy  is  misplaced ; 
and  by  reason  of  this  character  of  the  man,  thus  shown  by  his 
conduct,  greater  severity  of  punishment  is  prescribed.    The 


HAIR  V.  STATE. 


m 


I'oason  is  tho  saiiin  whether  both  crimes  are  of  similar  char- 
actor  or  of  tho  same  grade  or  not.  Both  are  crimes,  and  the 
perpetration  of  tlio  second,  however  different,  shows  such  a 
persistence  in  evil,  such  a  continued  criininahty,  as  to  Justify 
and  make  prudent  a  severer  penalty  than  slioukl  bo  inflicted 
upon  a  iirst  oll'ender.  If  Ave  adopted  the  construction  sought, 
a  prisoner  miglit  have  boon  convicted  of  many  felonies,  and 
yet  by  judicious  changes  from  one  to  niiother,  or  running  up 
or  down  the  dilFerent  grades,  escape  entirely  the  penalty  of  a 
second  otTense. 

We  think  no  error  was  committed  and  tho  judgment  should 
be  ailirmed. 

All  concur. 

Judgment  affirmed. 


IIatu  v.  State. 


(lONeb.,G01.) 

CoNSTniTCTiON  OF  STATUTE:    Absence  of  prisoner — Verdict — Evidence  of 
deceased  witness — Ileporta^s  notes. 

1.  Construction  of  statutes  — Repeal  of— Effect  of  AjrcxDMENT. — 

Tlic  repeal  of  a  ci'iminal  law  by  an  amcndatoiy  act  wliich  changes  the 
repealed  act  only  by  reducing  the  punishment,  Avhen  tlie  repeal  and  re- 
enactment  were  intended  to  continue  in  force  the  uninterrupted  opera- 
tion of  tho  old  statute,  will  apply  to  crimes  committed  before  the  new 
act  took  effect;  and  tho  offender  may  be  punished  under  the  law  as 
amended. 

2.  Absence  of  prisoner.—  Tlie  voluntai-y  withdrawal  of  a  prisoner  from 

tho  court-room  during  tho  progress  of  his  trial,  and  during  the  exam- 
ination of  a  witness,  will  not  entitle  him  to  a  new  trial  on  account  of 
his  absence,  when  it  is  shown  that  upon  his  absence  being  discovered 
all  further  proceedings  were  suspended  until  his  return,  which  was  but 
a  few  minutes,  and  upon  his  return  the  witness  was  re-examined  cover- 
ing the  questions  asked  during  the  absence  of  the  prisoner, 
'  ?>.  Verdici'  —  Entering  jury  room.—  Tlie  fact  that  a  man  was  seen  to  enter, 
through  a  window,  a  room  in  which  a  jurj'  had  been  sent  to  delibei'ate, 
without  proof  that  the  jury  were  still  in  the  room,  will  not  invalidate  a 
verdict  subseciuently  returned  by  tho  jurj',  where  it  is  shown  by  the  tes- 
timony of  tho  jurors  that  no  person  other  than  the  jurors  and  bailiff 
entered  the  room  in  which  the  jury  were  actually  confined  during  their 
deliberations. 


128 


AMERICAN  CRIMINAL  REPORTS. 


4.  Evidence  of  witness  deceased  since  former  trial.— Wlioro  a  de- 

ceased witness  testified,  upon  a  former  trial  of  the  same  party  for  the 
same  offense,  being  brought  "  face  to  face"  with  the  accused,  and  cross- 
examined  by  him,  it  is  competent  upon  a  subsequent  trial  to  provf>  the 
testimony  of  such  deceased  witness;  and  such  proof  does  not  violate 
the  provisions  of  tlie  constitution  of  the  state  which  gives  to  the  accused 
the  right  to  "  meet  the  witnesses  against  him  face  to  face." 

5.  Evidence  of  court  reporter  at  former  trial. — Wliere  a  court  re- 

porter is  sworn  as  a  witness  for  the  puqwse  of  proving  the  testimony  of 
a  deceased  witness,  and  where  such  reporter  testifies  that  the  notes  of 
the  testimony  of  sucli  deceased  witness  were  accurately  taken  by  liim 
at  tlie  time  the  testimony  was  given,  such  notes  may  be  used  by  the  re- 
porter in  giving  the  testimony  of  tlie  deceased  witness,  for  the  purpose 
of  refresliing  his  memory,  and  if  necessary  he  may  read  the  testimony 
to  the  juiy. 

Error  from  Kearney  County. 

Burr  &  Parso7is  for  plaintiff  in  error. 

The  Attorney-General  and  W.  S.  Morlan,  for  defendant. 

Eeese,  J.  This  is  a  proceeding  to  review  the  judgment  of 
the  district  com-t  of  Kearney  county,  by  which  the  plaintiff  in 
error  was  convicted  of  the  crime  of  horse-stealing.  The  errors 
alleged  by  j^laintiff  in  error  Avill  be  noticed  in  their  order. 
The  first  point  presented  is  that  the  indictment  was  presented 
at  the  October  term,  18S2,  charging  the  commission  of  the 
offense  on  the  IGth  day  of  May,  1882,  and  that  on  the  18th  day 
of  October,  1883,  and  after  the  repeal  of  the  law  which  made 
the  act  criminal,  and  which  was  done  June  1,  1883,  plaintiff  in 
error  was  put  upon  his  trial  and  convicted.  This  question 
arose  in  the  case  of  State  v.  Wish,  15  Neb.,  448  {S.  C,  19  N.  W. 
Eep.,  686),  and  was  decided  adversely  to  the  position  assumed 
by  plaintiff's  counsel.  Upon  a  reinvestigation  of  the  question 
we  are  satisfied  with  the  decision  in  that  case.  The  only 
change  made  in  the  law  was  to  the  benefit  and  advantage  of 
plaintiff  in  error,  the  punishment  having  been  decreased.  This 
question  also  received  the  attention  of  this  court  in  Marlon  r. 
State,  ante,  p.  349.  In  this  action  of  the  district  court  there 
was  no  error. 

The  next  question  presented  is  that  while  the  jury  were  de- 
liberating upon  their  verdict  a  man  was  seen  to  enter  "  the 
court-house  through  the  open  window  thereof  into  the  room 
where  the  said  jury  had  been  sent  by  said  court  and  ordered 


to  be  kc 
Tpon  thi 
'•  I  was  i 
on  the  01 
and  saw 
window  t 
the  distri 
ing  tlioir  i 
that  this  I 
the  jury 
tliat  thisi 
luul  l)ocn 
place,  hoi 
baililT,  an 
Tlic  ixWuh 
that  anyt 
was  inad( 
affiant,  w' 
wlio  ooul( 
not.    ]jut 
affidavits  ^ 
one  had  ; 
room,  cx( 
cliargo." 
fori'cd  to 
man  just  i 
freshed,"  < 
It  is  ins 
plaintiff  ii 
trial,  and 
attorney, 
oner  requ( 
and  nccos 
acconipan 
questions, 
of  the  dis 
prisoner  1: 
turn,  and  t 
and  they  \ 
form  bein 
Vol 


HAIR  V.  STATE. 


to  bo  kopt  (luring  thoir  deliberation  of  the  case  aforesaid."  ' 
Upon  this  point  we  iind  the  affidavit  of  R.  St.  Clair,  as  follows: 
"  I  was  in  the  town  of  Minden,  in  said  county,  and  saAV  a  man 
on  the  outside  and  south  side  of  the  court-house  in  said  county, 
and  saw  the  said  man  enter  said  court-house  through  the  open 
window  thereof  into  the  room  where  the  said  jury  had  b?en,  l)y 
tlic  district  court  of  said  county,  sent  and  ordered  to  be  kept  dur- 
ing thoir  said  deliberation  aforesaid  in  the  cause  afoi'csaid ; "  and 
that  this  occurred  on  the  morning  of  October  21, 1S83,  and  while 
the  jury  were  considei-ing  their  verdict.  But  it  is  not  shown 
tliat  this  occurred  while  the  jury  were  in  the  room  to  which  they 
had  l)i^on  sent,  nor  that  they  had  not  been  removed  to  another 
place,  nor  that  the  person  referred  to  was  not  the  sheriff  or 
bailiiT,  and  making  the  entry  for  a  lawful  and  proper  purpose. 
The  alii(hivit  was  not  sufficient  in  itself  to  convince  the  mind 
that  anything  irregular  or  unusual  was  being  done.  The  entiy 
was  made  on  the  morning  of  October  21,  Avas  soon  by  the 
affiant,  who  was  one  of  the  counsel  for  plaintiff  in  error,  and 
who  could  have  ascertained  who  the  intruder  was;  but  he  did 
not.  But  this  matter  is  fully  and  satisfactorily  settled  by  the 
affidavits  of  two  of  the  jui'ors,  Avho  testify  positively  that  "no 
one  had  access  to  the  said  jury,  or  was  allowed  in  the  jurj^- 
room,  except  tlie  mend)ers  of  the  jury  and  the  bailiff  in 
charge."  It  is  suggested  by  plaintiff  in  error  that  the  num  re- 
ferred to  was  a  juror  who  "went  over  to  the  saloon  to  see  a 
man  just  for  a  moment,  and  was  returning  to  his  duties  duly  re- 
freshed," etc.  This  suggestion  is  not  sustained  b}''  any  proof. 
It  is  insisted  that  a  new  trial  should  be  granted  because  the 
plaintilF  in  error  was  removed  from  the  court-room  during  the 
trial,  and  while  a  witness  was  being  examined  by  the  district 
attorney.  The  affidavits  show  that  during  the  trial  the  pris- 
oner requested  the  sheriff  to  allow  him  to  retire  for  a  proper 
and  necessary  purpose.  The  request  Avas  granted,  the  sheriff 
accompanying  him.  The  district  attorney  asked  tAA'o  ov  three 
questions,  AA^hich  were  ansAvered  by  the  witness.  The  attention 
of  tlie  district  attorney  was  then  called  to  the  fact  that  the 
prisoner  had  stepped  out,  upon  Avhich  ho  ceased  until  his  re- 
turn, and  then  re-asked  the  questions  (Avhich  Avere  unimportant) 
and  they  Avere  re-answered  by  the  Avitness,  no  objection  in  any 
fonn  being  made  by  the  prisoner  or  his  counsel.  IS'othing 
Vol.  IV— 9 


130 


AMERICAN  CRimNAL  REPORTS. 


occurred  which  coiikl  be  in  the  least  to  the  prejudice  of  plaint- 
iif  in  error.  It  appears  from  the  record  that  the  jury,  while 
deliberating,  were  uncertain  as  to  the  testimony  of  the  two 
principal  witnesses  for  the  defense,  and  they  were  brought  into 
court  and  the  examination  in  chief  of  those  witnesses  was  read 
by  the  reporter.  This  is  now  complained  of.  It  is  quite  clear 
to  our  minds  that  this  could  not  possibly  have  worked  any 
prejudice  to  the  plaintiff  in  error.  But  no  objection  was  made 
at  the  time,  and  no  exception  was  taken.  So  far  as  tlie  record 
shows  it  was  done  with  the  consent  of  plaintiff  in  error.  The 
presumption  is  it  was,    F'dUon  v.  State,  5  Xeb.,  354. 

The  plaintiff  in  error  was  convicted  of  the  ofTenso  charged 
on  a  former  trial,  and  which  was  set  aside  by  this  court,  and  is 
reported  in  14  K^eb.,  503  {S.  C,  IG  N,  W,  Rep.,  829),  On  the 
former  trial,  one  A.  T.  Shinneman  was  a  witness  on  behalf  of 
the  state.  This  witness  was  the  sheriff  of  Cowley  county,  in 
the  state  of  Kansas,  and  arrested  plaintiff  in  error  at  Winfield, 
in  that  state,  and  at  the  same  time  recovered  from  him  the 
horses  alleged  to  have  been  stolen.  The  arrest  and  recovery 
were  made  soon  after  the  alleged  theft.  After  the  first  trial, . 
and  prior  to  the  second  one,  Shinneman  died.  The  fact  of  his 
deatli  was  shown,  and  his  testimony,  as  given  on  the  first  trial, 
was  reproduced  on  the  second.  It  is  insisted  that  the  recep- 
tion of  this  evidence  was  in  violation  of  the  constitutional  pro- 
vision of  this  state  which  guarantees  to  a  defendant  tlie  right 
"to  meet  the  witnesses  against  him  face  to  face."  Section  11, 
art.  1,  Const.  Neb.  It  is  conceded  that  at  common  law  the 
testimony  was  competent,  but  is  insisted  that  this  rule  of  the 
common  law  is  changed  by  this  constitutional  provision.  In 
"Whart.  Crim.  Ev.,  §  227,  it  is  said:  "What  a  decciised  witness 
testified  to  on  a  former  procedure  against  the  same  (k>fendant 
for  the  same  offense  as  that  under  trial,  or  for  an  offense  sub- 
stantially the  same,  may  be  proved  by  witnesses  who  h(?ard  the 
testimony  of  the  witness ;  nor  is  such  oral  evidence  excluded 
by  the  fact  that  the  original  testimony  was  reduced  to  writing, 
nor,  in  criminal  cases,  by  +he  constitutional  provision  that  the 
defendant  is  entitled  to  be  confronted  with  tlu;  witnesses  against 
him."  In  this  case,  the  witness  had  tcstiflod  to  the  facts  sought 
to  be  proven,  and  had  done  so  in  the  presence  of  the  accused ; 
had  been  cross-examined  by  him,  and  had  met  him  "  face  to 


HAIR  V.  STATE, 


131- 


face"  in  giving  liis  testimony,  and  that  in  the  same  cause  as 
the  one  in  which  the  proof  of  tlie  former  testimony  was  made. 
Tiie  evidence  was  competent  and  properly  received.  Broivnv. 
Com.,  73  Pa.  St.,  325;  Johnson  v.  State,  1  Tex.  App.,  333;  State 
V.  Johnson,  12  l^c\.,  121;  People  v.  Murphy,  45  Cal.,  137,  and 
cases  cited  in  note  to  AYhart.  Crim.  Ev.,  supra. 

Objection  is  also  made  to  the  manner  of  proving  the  testi- 
mony of  this  deceased  "witness.    The  record  shows  that  the 
roi)orter  of  the  court  was  placed  upon  the  witness  stand,  and 
tostilied  tliat  he  Avas  the  reporter  of  the  district,  and  that  he 
Avas  present  and  reported  the  evidence  on  the  previous  trial. 
That  the  witness  Shinneman  testified  on  that  trial,  and  his  tes- 
timony was  accurately  reported  by  him.  He  was  then  requested 
to  read  the  testimony  of  the  deceased  witness,  which  he  did  by 
reading  the  questions  and  answers  as  they  were  given  on  the 
former  trial,  excepting  a  part  which  was  objected  to  by  plaint- 
iff in  error,  and,  the  objection  being  sustained,  the  testimony 
was  excluded.     Plaintitf  in  error  claims  tluit  a  copy  of  tlie  re- 
porter's notes  was  introduced  in  evidence  in  tlie  IVn-m  of  an 
exhibit,  as  documentary  evidence,  and  as  such  Avas  incompe- 
tent.   AVe  do  not  so  consider  it.     It  is  true,  the  reporter  was 
v.'A  asked  to  give  tlie  testimony  from  memory,  for  the  ivas<m, 
perha])s,  that  such  a  thing  was  known  to  be  impossible.     But 
the  testimony  was  simply  ]'e))eated  by  the  reporter,  using  his 
notes  as  a  guide  to  refresh  his  memory.     The  right  to  cross- 
examine  the  reporter  at  all  stages  of  the  testimony  was  pre- 
served, together  with  the  right  to  object  to  any  objectionable 
questions,  which  latter  right  Avas  exercised,  as  shown  by  the 
record.    The  correct  method  of  introducing  such  testimony 
Avould,  perhaps,  be  to  first  ask  the  Avitness  if  he  coidd  state 
from  memory  the  testimony  of  the  deceased  Avitness,  and,  if 
the  answer  should  be  in  the  negatiA'^e,  the  memory  of  the  Avit- 
ness could  bo  refreshed  by  the  notes  he  had  taken.     AVhart. 
Crim.  Ev.,  §  231.    In  the  case  at  bar  there  Avas  no  substantial 
<loparture  fiom  this  rule.     In  People  v.  Mnrphu,  supra,  it  is 
distinctly  held  th  it  a  jierson  who  kept  notes  of  the  testimony 
of  a  deceased  Avitness  nniy  read  such  notes  to  the  jury  as  the 
testimony  of  the  deceased  Avitness.     It  must  also  be  observed 
that  no  objection  Avas  made  in  the  court  beloAv  to  the  manner 
of  proving  the  testimony  of  Shinuoman,  but  to  the  proof 


.132 


AMERICAN  CRIMINAL  REPORTS. 


itself,  upon  the  constitutional  ground  above  referred  to.  "We 
see  no  error  in  the  ruling  of  the  district  court  upon  the  admis- 
sibility of  the  evidence. 

The  last  contention  of  plaintiff  in  error  is  that  the  verdict 
of  the  jury  is  not  sustained  by  sufficient  evidence.  The  testi- 
mony is  quite  voluminous,  and  cannot  be  reviewed  at  length 
here.  It  is  claimed  b}--  plaintiff  in  error  that  he  purcluiscd  the 
horses  alleged  to  have  been  stolen,  and  that  his  purchase  was 
made  on  the  25th  of  May,  1882,  at  Chapman,  Kansas,  in  good 
faith,  etc.  The  proof  upon  this  point  is  by  the  testimony  of 
one  witness,  who  claims  to  have  been  present  and  witnessed 
the  trade,  and  by  the  wife  of  plaintiff  in  error,  who  testilicd 
that  ho  was  out  talking  with  a  stranger,  and  came  into  the 
house  saying  they  were  nice  horses;  that  ho  had  bought  tlicm, 
and  wanted  her  to  get  tlie  money;  and  she  got  it  for  him  to 
pay  for  them.  On  the  part  of  the  state,  it  is  testified  by 
Mathew  Ilawkenson,  the  owner  of  the  horses,  that  they  were 
stolen  on  the  night  of  the  Kith  of  ]May,  in  Kearney  county, 
Nebraska,  and  by  Mrs.  Patterson,  Ilcnry  Erickson  and  Oscar 
Carlson  that  plaintiff  in  error  was  seen  by  them  in  the  imme- 
diate noigliborhood  in  wliich  the  horses  were  stolen  but  a 
short  time  before  they  were  taken  —  from  sixteen  to  forty- 
eiglit  hours;  that  he  was  in  company  with  another  num,  and 
tliat  they  claimed  to  be  hunting  employment  at  brealcing 
horses.  They  called  at  the  house  of  Mrs.  Patterson  and  Irjiiglit 
some  bread,  and  while  tliore  their  conduct  and  appeariinco  was 
siich  as  to  specially  attract  her  attention.  None  of  this  proof 
is  contradicted,  and  no  effort  is  made  to  show  the  whorea bouts 
of  jilaintiff  in  error  at  that  or  at  any  other  time  previous  to 
his  arrest  at  Winfleld,  Kansas,  in  June  following,  where  ho 
was  trying  to  sell  the  horses.  The  evidence  tliat  he  was  in  the 
neighborhood  from  which  the  horses  were  taken  is  quite  satis- 
factory, and,  being  uncontradicted,  must  be  taken  as  true.  The 
evidence  that  he  bought  the  horses  is  quite  unsatisfactory,  and 
lacks  those  convincing  qualities  which  are  usually  found  in  the 
statements  of  credible  witnesses. 

The  testimony  was  sufficient  to  sustain  the  verdict,  and  the 
judgment  of  the  district  court  is  affirmed. 

NOTK.—  Evidence— Testimony  of  deceased  witness.— ^Yhora  tho  testimony 
of  a  witness  given  on  a  former  trial  is  roproduooJ,  tho  witness  having  died, 


testimony 
stated  that 
tent.    Cra 
rule  that  b 
statements 
as  to  such 
ent.    In  ai 
witness  soi 
is  no  repori 
nuuicrous  < 
sition  and  ( 
that  such 
tent,  since 
tion  to  tho 
must  first  I 
contradicto 

Even  in  f 
posite  partj 
court  of  O 
proof  of  at: 
yan  v.  Prie 

In  tho  cai 
Iiad  been  ti 
ant  oirored 
in  whieli  he 
under  threii 
mony  tlie  C( 
has  been  ox 
afterwards , 
timoiiy,  anc 
the  rule  afTt 
of  this  Icind 
bo  often  rej 

But  when 
ment  for  coi 
evidence.  '. 
introductioi 
?'.  L'Mco,  2  I 
GanJcnhire 
facts  laying 
will  hear  o 
pr()i)er  foun 
return  undt 


HAIR  V.  STATE. 


laa 


testimony  to  tho  effect  that  the  witness,  subsequent  to  the  former  trial, 
stated  that  the  evidence  given  by  him  on  that  trial  was  false,  is  not  compe- 
tent. Craft  V.  Com.,  81  Ky.,  250.  The  court  bases  its  decision  uiwn  the 
nile  that  before  evidence  can  bo  adduced  to  impeach  a  witness  by  proof  of 
statements  contradictory  of  what  he  has  testified,  he  must  be  inquired  of 
as  to  such  statements  with  circumstances  of  time,  place,  and  persons  pres- 
ent. In  answering  the  argument  that  this  rule  does  not  apply  when  tho 
witness  sought  to  be  impeached  is  dead,  the  court  says:  "  In  tliis  state  there 
is  no  reported  case  in  which  the  question  has  been  presented,  but  there  are 
numerous  cases  in  which  the  evidence  of  a  deceased  witness,  both  by  depo- 
sition and  orally,  has  been  reproduced,  and  tliis  fact  is  strongly  pcrsniisive 
that  such  impeaching  testunony  has  been  uniformly  considered  incompe- 
tent, since  it  could  not  have  been  introduced  without  making  it  an  excep- 
tion to  the  well  established  rule  that  the  witness  sought  to  be  iini)eached 
must  first  be  inquired  of  as  to  the  cu'cumstances  of  time  and  place  of  the 
contradictory  statements." 

Even  in  an  ex  i)arte  proceeding  for  the  probate  of  a  will,  where  the  op- 
posite party  had  no  ojiportunity  to  cross-examine  the  witness,  the  supreme 
court  of  Ohio  refused  to  allow  the  deceased  witness  to  be  impeached  by 
proof  of  statements  in  conflict  with  his  evidence  given  under  oath.  Ean- 
yan  v.  Price  ct  ah,  15  Ohio  St.,  1. 

In  the  case  of  Stacy  v.  Graham,  14  N.  Y.,  492,  the  testimony  of  a  witness 
had  been  taken  de  bene  esse  and  read  on  the  trial,  whereupon  the  defend- 
ant olfored  to  prove  conversations  with  tho  witness  after  his  examination, 
in  which  he  confessed  that  his  evidence  was  false,  that  it  had  b^en  given 
uuJer  threats,  and  that  ho  regretted  having  testified  as  lie  had ;  which  testi- 
niony  the  court  refused.  In  its  opinion  the  court  says:  "  When  a  witness 
has  been  examined  and  cross-examined,  if  we  allow  him  to  be  approached 
afterwards  and  declarations  to  be  drawn  from  him  inconsistent  with  his  tes- 
timony, and  then  receive  those  in  evidence  without  the  protection  which 
the  rule  affords,  there  will  bo  nosafetj'  in  trials.  When  the  first  experiment 
of  tliis  kind  shall  be  sanctioned  by  the  courts,  there  is  no  doubt  that  it  will 
be  often  repeated  and  with  greater  or  less  success." 

But  when  a  witness  I'efuses  to  be  cross-examined,  and  while  in  commit- 
ment for  contempt,  an  admission  that  his  evidence  was  false  may  be  given  in 
evidence.  The  People  v.  Moore,  15  Wend. ,  419.  Nor  does  the  rule  exclude  the 
introiluction  of  evidence  as  to  the  general  character  of  the  witness.  Losee 
V.  Dmc,  2  IIill(N.  Y.),  009;  Van  Dijkc  v.  Thompson,  1  Harrington  R.,  109; 
Ganknhire  v.  Parks,  3  Yerg.,  2t}.  If  the  magistrate's  notes  fail  to  show 
facts  laying  the  grounds  for  impeachment  of  a  deceased  witness,  the  court 
will  hoar  evidence  on  the  subject,  and  if  it  is  made  to  appear  that  tho 
pr()[)er  foundation  was  laid,  the  magistrate  will  be  compelled  to  ameml  his 
return  under  tho  direction  of  the  court.    Griffith  v.  The  State,  37  Ark.,  !J24. 


13i 


AMERICAN  CRDUNAL  REPORTS. 


Ex  Pakte  Peiest. 

(76  Mo.,  229.) 

Contempt:  Habeas  corpus— Power  of  notary  public  to  commit  for. 

1.  Notary  public — Power  to  comnT  for  contempt. — Tlie  statutes  con- 

fer authority  on  notaries  public  to  commit  to  prison  any  witness  who 
refuses,  wlien  duly  summoned,  to  give  his  deposition.  R.  S.  18T9, 
t(g  2133,  2150,  4027. 

2.  .    A  party  to  a  suit  is  under  the  same  obligation  to  give  his  deposition 

as  any  other  person. 

3.  .   That  a  witness  resides  within  the  jurisdiction  of  the  court  in  which 

the  suit  is  pending,  is  in  good  health,  and  contemplates  no  prolongeil 
absence,  but  expects  to  be  present  at  the  trial,  is  not  made  by  the  stat- 
ute an  exception  to  the  right  of  a  party  to  the  suit  to  have  his  deposi- 
tion. 

A.  J.  P.  Garesche,  for  the  petitioner. 

Herman  cfc  lieyhiwih  and  G.  2£.  Stewart,  contra. 

IIkxrv,  J.  The  petition  alleges  that  petitioner  is  restrained 
of  his  hberty  by  Isaac  M.  Mason,  slierilf  of  tlie  cit}'  of  St. 
Louis,  under  and  by  virtue  of  his  comniitnient  by  Francis 
YaUe,  a  notary  public  Avithin  said  city,  duly  comniissioiKMl, 
etc.,  for  the  refusal  of  said  petitioner  to  testify  in  a  cause 
Avherein  said  petitioner  is  })laintitf  and  Charles  P.  Chouteau  is 
defendant,  pending  in  the  circuit  court  of  the  city  of  St.  Louis, 
said  defendant  having  given  due  notice  that  he  would  take  the 
depositions  of  witnesses  in  said  cause,  before  said  notary,  and 
said  Priest  having  been  duly  subpxuiacd  to  appear  bef<n'c  said 
notary  and  testify  therein;  that  there  Avas  then  pending  in  tlie 
St.  Louis  court  of  appeals  a  suit  in  ejectment  in  Avhich  Preil- 
erick  R.  Priest  Avas  plaintilf  and  said  Chouteau  Avas  defendant, 
for  the  possession  of  a  certain  leasehold  interest,  situate  in  the 
city  of  St.  Louis,  Avhich  Avas  purchased  by  said  plaintiff  under 
a  deed  of  trust  conveying  the  same  to  August  L.  Priest,  as 
trustee,  to  secure  the  payment  of  two  promissory  notes  in  the 
aggregate  amounting  to  8^,000  and  interest,  executed  by  Jion- 
edict  De  Bar  to  John  G.  Priest.  In  that  suit,  Chouteau,  among 
other  defenses,  alleged  that  said  leasehohl  was  the  partnership 
property  of  a  firm  composed  of  himself,  I)e  Par  and  the  trustee 
of  Alice  B.  Wakelield ;  that  the  lirm  Avas  largely  indebted  to 
sp.id  Chouteau  as  surviA'ing  partner ;  that  the  debt  secured  by 


illegal. 


EX  PARTE  PRIEST. 


135 


said  deed  of  trust  made  by  De  Bar  Avas  not  a  partnership  debt. 
After  Cliouteairs  answer  Avas  filed  in  said  snit,  tlie  petitioner, 
John  G.  Priest,  sued  him  on  said  note,  alleging  that  the  money- 
was  borrowed  for  and  used  by  the  said  firm,  and  alleging  that 
said  Chouteau  was  a  member  of  that  firm.  In  the  ejectment 
suit  the  petitioner's  deposition  was  taken,  and  the  petition 
alleges  tliat  petitioner  therein  testified  fully  in  relation  to  all 
matters  at  issue  in  said  suit;  that  said  deposition  was  not  read 
at  the  trial  thereof,  but  that  petitioner  was  introduced  as  a 
witness  by  the  plaintiff  therein,  and  cross-examined  by  Chou- 
teau's counsel,  and  his  testimony  subsequently  written  out  at 
full  length,  and  that  the  notes  thereof  are  still  extant  and 
within  the  power  of  said  Chouteau ;  and  also  that  the  substance 
of  said  testimony  was  embodied  in  the  bill  of  exceptions  filed 
in  said  cause,  and  copied  into  the  transcript  filed  in  the  office 
of  the  clerk  of  the  St.  Louis  court  of  appeals.  It  is  also 
alleged  that  the  suit  of  F.  R.  Priest  against  Chouteau,  and 
that  of  John  G.  Priest  against  Chouteau,  are  under  the  same 
loan  based  on  the  same  facts ;  that  the  former  suit  was  for 
the  recovery  of  the  possession  of  said  leasehold,  and  the  latter 
to  recover  the  debt  secured  by  said  deed  of  trust.  He  further 
states  that  after  the  institution  of  the  latter  suit  it  was  agreed 
between  the  parties  that  any  deposition  taken  in  the  former 
might  be  read  by  either  party  at  the  trial  of  the  latter  cause, 
lie  further  states  that  there  is  no  necessity  to  take  his  deposi- 
tion, he  being  a  resident  of  the  said  city,  in  good  health,  and 
contemplating  no  prolonged  absence  from  the  city;  but,  on  the 
contrary,  intending  to  bo  present  at  the  trial. 

On  the  foregoing  facts  we  have  determined  that  the  restraint 
of  petitioner's  personal  liberty  by  the  sheriff,  Mason,  is  not 
illegal.  Our  statute,  section  2130,  provides  that :  "  Any  party 
to  a  suit  pending  in  any  court  in  tliis  state  may  obtain  the  dep- 
osition of  any  witness  to  be  used  in  such  suit  conditionally." 
The  conditioiis  upon  whicli  such  depositions  may  be  read  Avill 
be  found  in  section  2157,  and  do  not  affect  the  (piestion  before 
us.  Section  2133  confers  authority  on  notaries  public  to  take 
depositions,  and  2150  provides  tliat:  "Every  person,  judge  or 
other  officer  of  the  state  required  to  take  the  depositions  or  ex- 
aminations of  Avitncsses,  in  pursuance  of  this  chapter,  .  .  . 
shall  have  power  to  issue  subpoenas  for  witnesses  to  appear  and 


136 


AMERICAN  CRIMINAL  REPORTS. 


testify,  and  to  compel  their  attendance  in  the  same  manner 
and  under  like  penalties  as  any  court  of  record  in  this  state." 
Said  section  further  provides  that:  "Any  person  summoned 
as  a  witness,  in  virtue  of  the  provisions  of  this  chapter,  and 
attending,  who  shall  refuse  to  give  evidence  which  may  law- 
fully bo  required  to  be  given  by  him,  on  oath  or  affirmation, 
may  be  committed  to  prison  by  the  officer  or  person  authorized 
to  take  his  deposition  or  testimony,"  etc.  The  same  power  is 
also  conferred  by  section  4027  of  the  act  in  relation  to  wit- 
nesses. Revised  Statutes,  C91.  "With  regard  to  the  power  of 
the  notary  to  commit  a  contumacious  witness  for  contempt, 
the  above  section  is  explicit. 

It  only  remains  to  consider  the  reasons  alleged  by  petitioner 
for  his  refusal  to  testify  before  the  notary.  His  deposition  had 
never  been  taken,  nor  had  he  ever  testified  in  the  cause  in  which 
he  was  summoned  b}^  the  notary  to  testify;  and  the  ])osition  of 
petitioner's  counsel,  that  when  a  witness  has  once  deposed  or 
testified  in  a  cause  he  cannot  be  required  to  depose  or  testily 
again  without  an  order  of  the  court  in  which  the  cause  is  ]iend- 
ing,  has  no  foundation  on  the  facts  presented  by  this  petition, 
saying  nothing  as  to  its  correctness  as  a  legal  proposition.  Xor 
did  the  stipulation  between  the  pai'ties,  that  all  depositions 
taken  in  the  case  of  F.  R.  Priest  against  Chouteau  might  be 
read  by  either  party  as  evidence  in  the  case  of  Jno.  G.  Priest 
against  Chouteau,  deprive  Cliouteau  of  tlie  rig] it  to  take  peti- 
tioner's deposition  in  the  latter  cause.  It  was  not  tlie  same 
suit.  The  cause  of  action  is  not  tlie  same,  and  it  by  no  means 
follows,  because  some  of  the  issues  were  the  same  in  botli,  that 
Chouteau  might  not  have  desired,  and  been  entitled  to,  peti- 
tioner's testimony  on  other  matters  tlian  that  to  whicli  liis  tes- 
timony related  in  the  other  cause.  Xor  was  it  a  sufficient 
reason  for  his  refusal  to  testify  that  his  oral  testimony  had 
been  given  in  the  other  cause  and  reduced  to  writing,  and  sub- 
stantially embodied  in  a  bill  of  exceptions  filed  in  tluit  cause. 
The  testimony  delivered  could  only  have  been  proved  by  wit- 
nesses who  heard  it,  and  lie  had  the  right  to  call  on  petitioner 
to  testify  to  the  facts,  as  by  far  more  satisfactory  evidence  than 
that  of  a  third  person  relying  upon  his  memory  or  notes  of  the 
testimony  taken  to  state  Avhat  petitioner's  testimony  was.  The 
bill  of  exceptions  did  not,  as  appears  from  this  petition,  con- 


tain the 
stance. 

A  par 
may  be  c 
cisely  as 
same  rig! 
witness  A 
Priest  ag 
cause  of 
refused  tt 
by  tlie  pt 
"That  tl 
contenq)!; 
to  bo  pi'oj 
to  the  rig 
op])rc.ssio; 
may  bo  s 
statute  w" 
the  ])cace 
and  we  si 
until  it  sh 
under  seel 
writ  of  hn 


The  propor 
cri'.uiiia! 

process 

Indictm 
Gudger,  J 

The  Ati 
No  coui 

Smith,  ( 
delivered 


STATE  V.  RAILROAD  CO. 


tain  the  entire  testimony  given  by  petitioner,  but  only  the  sub- 
stance. 

A  party  to  a  suit  is  a  competent  witness  for  lilmself,  and 
may  be  called  as  a  ^vitness  by  his  adversary,  and  stands  pre- 
cisely iis  any  other  witness,  in  relation  to  that  suit,  with  the 
same  rights  and  duties,  neither  more  nor  less;  and  if  any  other 
witness  who  had  given  his  deposition  in  the  cause  of  F.  R. 
Priest  against  Chouteau  had  been  summoned  to  testify  in  the 
cause  of  John  G.  Priest  against  Chouteau,  he  could  not  have 
refused  to  testify,  for  that,  reason,  or  any  other  reason  alleged 
by  tlie  petitioner  in  this  petition. 

That  the  petitioner  resides  in  St.  Louis,  is  in  good  health,  and 
contemplates  no  prolonged  absence  from  the  city,  but  expects 
to  be  present  at  the  trial  of  the  cause,  is  not  made  an  exception 
to  the  riglit  of  a  party  to  a  suit  to  have  his  deposition.  The 
op])re.ssioii  and  annoyance  to  which  witnesses  and  suitors  who 
may  be  summoned  as  witnesses  ma}"^  be  subjected  under  the 
statute  wliieh  confers  such  power  upon  notaries  and  justices  of 
the  peace,  is  a  matter  for  the  consideration  of  the  legislature, 
and  we  sliall  withhold  an  expression  of  opinion  on  such  a  case 
until  it  sliall  have  come  before  us.  For  the  foregoiiig  reasons, 
under  section  2020,  Pevised  Statutes,  wo  decline  to  grant  the 
writ  of  habeas  coi'j)us.    All  concur. 


State  v.  Railroad  Co. 

(89  N.  C,  584.) 

Corporations:  Process  to  compel  appearance  of. 

The  prnpor  iiioilo  of  bringing  into  court  a  corporation  charged  with  a 
criiuiiial  olfonso  is  by  sorvice  of  a  copy  of  the  siiininons  upon  one  of  its 
cfllcerd  or  agents.  Tlie  acts  of  assembly  in  reference  to  service  of 
proccas  iu  civil  and  criminal  cases  reviewed. 

Indictment  for  obstructing  a  public  highway,  tried  before 
Gudger,  J. 

The  Attorney-General,  for  the  state. 
No  counsel  for  the  defendant. 

Smitu,  C.  J.    A  copy  of  the  bill  of  indictment  having  been 
delivered  by  the  sheriff  to  a  local  agent  of  the  defendant  com- 


138 


AMERICAN  CHIMINAL  REPORTS. 


pany,  without  process  of  any  kind  in  his  hands,  and  the  com- 
pany failing  to  appear  and  answer  the  charge  at  the  next  term 
of  the  court,  the  solicitor  moved  that  a  plea  of  "  not  guilty  "  be 
entered  and  the  accused  put  on  trial.  The  motion  was  refused, 
and  the  solicitor,  on  behalf  of  the  state,  was  allowed  to  appeal 
from  the  ruling  to  this  court. 

It  has  been  too  often  declared  to  need  reiteration  that  no 
a])peal  lies  from  any  ruling  of  the  court  in  the  conduct  of  a 
criminal  prosecution  until  its  determination  by  a  final  judg- 
ment, which,  unreversed,  puts  an  end  to  the  cause,  and  only  by 
the  state,  in  a  few  specified  cases,  to  no  one  of  Avhich  docs  this 
belong.  State  v.  Lane,  78  K  C,  547;  State  v.  Illnson,  82  K  C, 
5-10 ;  State  v.  Pollard,  83  K  C,  597 ;  State  v.  Poicell,  80  K  C,  <U0. 

The  ruling  of  the  court,  that  the  defendant  had  not  been 
brought  into  court,  left  the  cause  to  be  proceeded  with  as  if 
no  action  to  that  end  had  taken  place,  and  the  indictment  was 
still  depending.    The  appeal  must,  therefore,  be  dismissed. 

But  it  is  not  improper  that  we  should  express  an  o]>inion  as 
to  the  proper  mode  of  bringing  into  court  a  cf)rp()rati(m 
charged  with  a  criminal  offense  —  the  point  intended  to  be 
presented,  and  one  of  practical  importance  in  the  administra- 
tion of  the  criminal  law.  At  common  law  this  was  done  by 
the  issue  of  a  summons  and  its  service  upon  the  principal  or 
head  olficor  of  the  company,  and  if  it  did  not  appear,  as  it 
only  could  apjiear,  by  a  duly  constituted  attorney,  a  distvituidH 
was  awarded,  under  which  its  goods  and  lands  were  seizeil  to 
compel  an  appearance.  1  Tidd,  Pi\,  IIG;  2  Sellon,  Pr.,  liS; 
Aug.  &  Am.  Corp.,  §  G37;  1  Whart.  C.  L.,  §  89. 

But  a  method  of  procedure  is  prescribed  by  statute  in  this 
state,  as  Ave  presume  it  has  been  in  most,  if  not  all,  of  the 
others,  Avhicli  dispenses  with  that  furnished  by  the  common 
law,  if  not  itself  obsolete,  to  be  found  in  C.  C.  P.,  §  82,  and 
in  the  Code,  §  217. 

It  is  there  provided  that  the  summons  issued  by  the  clerk  of 
the  superior  court  shall  be  served  by  delivering  a  copy  thereof, 
"  if  the  suit  be  against  a  corporation,  to  the  president  or  other 
head  of  the  corporation,  secretary,  cashier,  treasurer,  a  director, 
or  managing  or  local  agent  thereof;"  the  italicized  words,  as 
well  as  the  superadded  definition  of  them,  having  been  intro- 
duced as  an  amendment  by  the  act  of  March  IG,  1875. 


If  it  be 
president 
sufficient 
agents,  w 
arose  the 
visions  a 
api)licabl 
this  conn 

The  en 
ily  intern: 
is  C([uall_v 
sulHcicntl 
step  was 
when  the 
sity,  as  a 
taken  iut( 
a  mandat 

A  corp( 
and  iucaj; 
by  attorn 
same  proc 
why  it  sh 

aVc  tin 
Ilampshii 
decided,  i 
feature,  t 
against  a 
indictinci 

In  our 
of  the  bil 
eireet  tha 
Would  ha 
and  in  bo 
any  legal 
should  ha 
in  his  refi 
pear  that 

The  a[i 
cause  ma 

« 

curiam. 


STATE  r.  RAILROAD  CO.  139 

If  it  be  a  foreign  corporation,  service  must  bo  made  upon  its 
president,  treasurer  or  secretary  found  within  the  state,  and  is 
sufficient  when  made  ui)(>n  the  other  corporate  officers  and 
agents,  Avhcn  it  has  pro|)erty  in  the  state  or  the  cause  of  action 
arose  tlierein,  or  tlie  plaint  iff  resides  in  tfio  state.  Tliese  pro- 
visions apply  to  coi'porations  generally,  but  there  are  others 
api)licable  specially  to  insui'auco  companies,  unnecessary  in 
this  connection  to  be  noticed.    Acts  1SS3,  ch,  57. 

Tlic  enactment  from  which  avc  have  recited,  though  primar- 
ily intended  as  a  regulation  in  the  institution  of  a  civil  action, 
is  equally  appropriate  in  a  criminal  action,  and  its  terms  are 
sufficiently  comprehensive  to  embrace  both.  The  former  initial 
step  was  by  sunnnons  and  not  by  vajHUs,  as  Avas  necessary 
when  the  oifender  was  a  natural  pei-son,  and  this  from  neces- 
sity, as  a  corporation  has  no  bodily  existence  capable  of  being 
taken  into  custody  by  the  officer,  and  could  only  be  reached  by 
a  mandate  directed  to  it  and  served  upon  its  principal  officer. 

A  corporation  having  existence  only  as  a  legal  conception, 
and  incapable  of  being  present  in  court  except  as  represented 
by  attorney,  Avould  seem,  from  its  nature,  to  be  subject  to  the 
same  process  in  criminal  and  civil  actions,  and  we  see  no  reason 
Avhy  it  should  not  be. 

AVe  find  this  view  taken  by  the  supreme  court  of  New 
Hampshire  in  RdUroad  i\  Sfidi\  82  N.  IL,  2f  5,  Avhere  it  expressly 
decided,  under  legislation  essentially  similar  to  our  own  in  this 
feature,  that  a  summons  is  the  only  i)rocess  that  can  issue 
against  a  corporation  to  compel  it  to  appear  and  answer  to  an 
indictment,  the  common  law  not  being  there  in  force. 

In  our  case  no  summons  issued,  and  the  delivery  of  a  copy 
of  the  bill  of  indictment  to  its  local  agent  could  have  no  more 
oirect  than  a  delivery  of  a  copy  of  a  complaint  in  a  civil  action 
Would  have,  without  an  accompanying  mandate  from  the  court, 
and  in  both  the  act  would  be  inoperative  and  meaningless  for 
any  legal  purpose.  If  the  appeal  could  be  entertained,  we 
should  have  no  hesitation  in  affirming  the  ruling  of  the  judge 
in  his  refusal  to  proceed  Avith  the  trial,  until  it  is  made  to  ap- 
pear that  the  proper  process  has  been  served  on  the  defendant. 

The  appeal  is  dismissed,  and  this  Avill  be  certified,  that  tiie 
cause  may  proceed  in  the  court  beloAV  Avhere  it  is  pending.  Pet' 
curiam.  Ajyjjeal  dismissed. 


^ 


^pp 


1^0  AMERICAN  CRIMINAL  REPORTS. 

Johnson  v.  Tue  Commonwealth. 
(81  Ky.,  825.) 
Corpus  delicti:  Circumatamtial  evidence. 

1.  Circumstantial  evidence  is  competent  to  establish  the  fact  that  the  per- 

son charged  to  have  been  murdered  is  dead.  The  production  of  the 
body  is  certainly  the  best  evidence  of  that  fact;  but  this  is  not  always 
possible. 

2.  The  conclusiveness  of  cu-cumstantial  evidence  to  establish  the  fact  of 

death  is  for  the  jury,  and  not  the  court,  to  determine.  The  court  is 
only  concerned  in  seeing  that  improper  evidence  does  not  go  to  tlie  jury, 
and  that  they  are  properly  instructed  in  such  cases. 

Appeal  from  Edmonson  Circuit  Court. 

Edicardn  t6  ILizelq),  for  appellant. 

P.  IF.  JLinfhi,  attorney-general,  for  appellee. 

Judge  IIiXKs  delivered  the  oi)inion  of  the  court. 

Appellant  was  convicted  and  sentenced  to  the  penitentiary 
for  life  on  the  charge  of  murdering  his  child.  The  evidence 
is  entirely  circumstantial.  A])pL'llant  left  liis  father's  house, 
having-  in  his  arms  his  two  children,  aged  respectively  three 
years  and  one  3'ear,  with  the  avowed  intention  of  goin;''  to 
Shakertown.  He  did  not  go  in  the  direction  ol"  Sli.  .cert()\> .,. 
nor  is  there  any  evidence  that  ho  went  the    •  .m  his  re- 

turn to  his  father's  some  three  or  four  days  lie  had  left 

having  with  hir^l  only  the  elder  of  the  two  ch.  n-en,  and  being 
asked  about  the  youngei*,  replied  that  he  left  it  w  itli  ci'rtain 
widow  woman  near  Shakertown.  A  brother  of  appellant  then 
went  to  the  house  of  the  woman  with  whom  appellant  stated 
he  had  left  the  child,  and  ascertained  that  the  child  had  not 
been  left  there.  After  these  inquiries  had  been  made,  and  the 
suspicion  becoming  general  that  the  child  had  been  murdered, 
appellant  stated  to  a  member  of  his  father's  family  that  he  was 
going  to  Shakertown  and  get  the  child ;  but  instead  of  doing 
so,  he  went  in  another  direction  under  an  assumed  name,  and, 
Avhen  arrested,  denied  his  identity,  and  when  tohl  that  he  was 
charged  with  murdering  his  child  said:  "They  may  try  me 
and  send  me  to  the  penitentiary,  but  they  can't  hang  me  unless 
they  prove  the  child  is  dead." 

The  only  question  presented  is,  whether  the  corjms  delicti, 
the  fact  that  the  crime  of  murder  has  been  perpetrated,  must 


A 


bo  cstabli 
of  the  bo 
circumsta 
lished 
evidence 
charged  t 
the  body 
den CO  of 
not  alwa} 
courts  set 
necessity 
establish 
the  devel 
the  dang( 
person  ch 
counted  f 
dence  is  a 
did  the  ki 

It  may 
be  greatei 
not  all'ect 
such  cases 
of  the  fac 
jury  alone 
proper  tes 
properl}'  i 
potent  in 
the  jury  : 
the  jury  1 
case. 

The  CO] 
fact  of  de: 
its  conclui 
of  the  coi 
Commonu 
7  Indiana 
cumstanti 


Note.— J5 
V.  Com.,  10] 


JOHNSON  V.  THE  COMMONWEALTH. 


be  establislied  by  direct  proof  of  tlie  kilb'ng,  or  by  an  inspection 
of  the  body,  or  wbetbcr  tbe  doatli  may  not  be  established  by 
circtunstantial  evidence  as  any  other  fact  in  the  case  is  estab- 
lislicd.  We  think  tliero  can  l)e  no  doubt  that  circumstantial 
evidence  is  competent  to  establish  the  fact  that  the  jjerson 
charged  to  liavo  been  murdered  is  dead.  The  production  of 
the  body  is  certainly  the  most  conclusive,  if  not  the  best,  evi- 
dence of  that  fact;  but,  in  the  very  nature  of  crimes,  this  is 
not  always  possible.  He  who  meditates  and  perpetrates  crime 
courts  secrecy  that  punishment  nuiy  not  follow;  hence  tho 
necessity  that  circumstantial  evidence  should  bo  admitted  to 
establish  tho  fact  of  death  as  of  any  other  fact  necessar}--  to 
the  development  of  truth.  It  is  true  that  experience  illustrates 
the  danger  of  convictions  for  murder  when  the  body  of  the 
person  charged  to  have  been  murdered  is  not  produced  or  ac- 
counted for;  but  a  like  danger  arises  when  circumstantial  evi- 
dence is  admitted  to  establish  tho  identity  of  the  person  who 
did  the  killing. 

It  may  be  that  tho  danger  of  an  erroneous  conviction  would 
be  greater  in  tho  first  instance  than  in  the  last,  but  that  can- 
not aU'ect  the  question  of  tho  competency  of  such  evidence  in 
such  cases.  Under  our  system,  where  the  jury  are  the  triers 
of  the  facts,  tho  weight  to  be  given  to  testimony  is  for  tho 
jury  alone,  the  court  being  concerned  only  in  seeing  that  ini- 
projjor  testimony  does  not  go  to  tho  jury,  and  that  they  are 
proi)erly  instructed  in  the  law.  "Where  there  is  evidence,  com- 
petent in  its  nature,  tending  to  justify  the  conclusion  at  Avhich 
the  jury  arrives,  this  court  cannot  disturb  the  verdict,  unless 
the  jury  have  not  been  properly  instructed  as  to  the  law  of  tho 
case. 

The  competency  of  circumstantial  evidence  to  establish  the 
fact  of  death  is  acknowledged  universally,  and,  under  our  code, 
its  conclusiveness  is  for  tho  jury  and  not  for  tho  determination 
of  the  court.  Bishop  on  Criminal  Procedure,  vol.  1,  sec.  1057; 
Commonwealth  v.  Webster,  5  Gushing,  310;  Stoddng  v.  State, 
1  Indiana,  330 ;  State  v.  Keeler,  28  Iowa,  551 ;  "Wills  on  Cir- 
cumstantial Evidence,  sec.  3,  page  1G2. 

Judgment  affirmed. 

Note. —  Established  by  circumstantial  evidence. —  In  a  recent  case,  Gray 
V.  Com.,  101  Pa.  St.,  380,  the  principal  eviJouce  relied  ou  to  prove  the  corjius 


142 


AMERICAN  CRI^nNAL  REPORTS. 


delicti  was  as  follows;  May  McCready,  a  daughter  of  the  deceased,  was 
asked  by  the  prosecution,  "  From  what  you  know  of  your  mother's  lower 
jaw,  state  whether  or  not  you  believe  this  jaw  to  be  that  of  j'our  mother." 
After  objections  which  were  overruled  the  witness  stated:  "  That  lower  jaw 
looks  very  familiar  to  me.  From  my  knowledge  of  my  mother's  jaw,  the 
appearance  of  that  jaw,  I  believe  it  to  bo  my  mother's."  Upon  cross- 
examination  she  said:  "  Mother  had  just  a  few  teeth  in  her  upper  jaw,  here 
in  front  She  had  none  back,  only  decayed  teeth,  roots  like,  back.  I  don't 
know  how  many ;  there  was  nothing  back  of  the  eye  teeth  on  each  side,  only 
roots  like,  decayed  teetlu  I  can't  just  tell  whether  the  lost  teeth  were  the 
eye  tcetli,  but  I  know  all  she  had  was  a  few  in  front.  There  was  no'doublo 
teeth  on  either  side  above,  tliat  I  can  remember,  but  there  was  some  roots 
of  decayed  teeth  back  on  each  side."  Another  witness,  who  had  been  in  the 
habit  of  eating  at  the  same  table  with  deceased  for  alx)ut  two  years,  testified 
that  tliere  were  certain  marks  about  her  head,  and  particularly  about  licr 
lower  jaw  bone,  and  tlie  teeth  therein,  and  that  witness  was  able  to  identify 
this  particular  jaw  bone  and  skull,  from  these  peculiarities. 

It  was  also  shown  that  the  deceased  disappeared  about  the  middle  of  Feb- 
ruary, 1879,  under  cu-cumstances  which  pointed  strongly  to  her  death  by 
violence.  She  was  a  woman  of  about  fifty  years  of  age,  in  humble  life,  liv- 
ing with  her  son,  a  lad  of  about  twelve  years  of  age,  in  a  small  log  cabin 
near  a  river  bank.  Tlie  little  boy  tcstiiioil  tliat  he  last  saw  his  niotlier  on 
the  morning  of  her  disappearance,  at  about  8  o'clock ;  that  they  ate  break- 
fast together,  and  that  when  he  returned  from  school  about  4  o'clock  in  the 
afternoon,  his  mother  was  not  there,  and  that  he  never  saw  or  heard  of  lier 
since.  Everything  about  the  house  and  the  woman's  wardrobe  wore 
undisturbed,  and  the  deceased  v%-as  not  in  the  hubit  of  going  from  home. 
It  further  api^eared  that  prior  to  her  disappearance  the  prisoner,  on  one 
or  more  occasions,  had  threatened  to  take  lier  life ;  he  knew  lier  and  had 
several  times  visited  her  house,  and  it  was  proved  that  some  time  be- 
fore her  disappearance  he  had  been  in  the  neighborhood.  On  the 
4th  of  April,  1878,  a  human  skull  was  found  on  the  river  shore  near 
the  house  in  which  the  deceased  had  lived.  The  hair  attached  to  the 
skull  was  evidently  that  of  a  woman ;  it  was  black  and  gray,  corresponding 
to  the  hair  shown  to  have  belonged  to  her :  the  skull  showed  marks  of  vio- 
lence ;  therr;  were  two  wounds,  either  of  which  would  be  suflicient  to  pro- 
duce dcatlu  The  court,  upon  this  evidence  tending  to  prove  the  corpus  tlcUcti, 
admitted  the  confession  of  the  defendant  And  the  jury  found  him  guilty 
of  murder  in  the  first  degree,  which  finding  the  supreme  court  refused  to 
disturb.  See  cases  cited :  Rex  v.  Hendnwrsh,  2  Leach's  Cr.  Cas.,  569 :  McCul- 
loch  V.  The  State,  48  Ind.,  109;  Udderzool:  v.  The  Com.,  26  Pa.  St.,  310. 

In  Williams  v.  The  People,  101  111.,  383,  held,  tliat  it  was  absolutely  neces- 
sary to  a  conviction  for  having  received  stolen  goods,  knowing  tliem  to  Iiave 
been  stolen,  that  the  prosecution  should  prove  beyond  a  reasonable  doubt 
that  a  larceny  of  the  things  stolen  had  been  committed.  "  This  fact,  being  the 
corpus  delicti,  cannot  be  established  alone  by  the  confession  of  the  accused." 


1.  Pr.vctici 

ciri'iiiu^ 

2.  Same.—  ' 

general 
st'entl  t' 

3.  Same  — ( 

tlie  act 
niotivcf 

./.  J).  ( 

F.  S.  h 

Lkwis. 

The  pli 
Pittsylviii 
at  Slioc'lco 
there  lieli 
cutiou  is  I' 

AvllicU    [)!'( 

sou  oil  \vl 
or  speciiil 
sueh  duty 
same,  ho  s 
niisdoinea 
meat,  as  t 
provides  t 
beoponed 
vided  tha' 
of  electio 
prescribei 
may  solcc 
of  such  a 
luc  nu 
of  tlio  jud 
2d  (hiy  of 
duly  selcc 
of  his  sai 


BOYD  V.  THE  COMMONWEALTH. 


US 


Boyd  v.  The  Com^ioxwealth. 

(77  Va,,  53.) 

Corruption  in  office:  Statutory  offense. 

1.  Practice  —  Pleading. —  An  indictment  under  a  statute  must  state  all  tlio 

cii.uaistaiices  which  constitute  the  offense  as  defined  in  the  statute. 

2.  Same. —  Tliough  the  offense,  at  common  law  or  by  statute,  is  defined  in 

general  terms,  yet  the  indictment  nuist  charge  it  specifically,  and  de- 
scc'iid  to  particulars. 

3.  Same  —  Officials. —  In  an  indictment  for  corrupt  misbehavior  in  office, 

the  act  must  be  distinctly  charged  as  done  knowingly  and  with  corrupt 
motives. 

J.  1).  Coles  and  W.  W.  ITcfirj/,  for  the  appellant. 

I\  S.  Blah',  attorney -general,  for  the  common  wealth. 

Lewis,  P.,  delivered  the  opinion  of  tlie  court. 

Tlic  i)luintilf  in  error  was  indicted  in  the  county  court  of 
Pittsylvania  county,  for  corrupt  conduct  as  a  judge  of  election, 
at  Shoekoo  voting  place,  in  said  county,  at  a  general  election 
tlierc  lield  on  the  2d  day  of  Xovemher,  1880.  The  ])rose- 
cutiou  is  founded  on  section  4;J.  chapter  8,  of  the  Code  of  187;), 
wliich  provides  that  "if  any  otlicer,  messenger,  or  oilier  per- 
son on  whom  any  duty  is  enjoined  by  law  relative  to  general 
or  special  elections,  shall  be  guilty  of  any  wilful  neglect  of 
such  duty,  or  of  any  corrupt  conduct  in  the  execution  of  the 
same,  lie  shall,  upon  conviction  thereof,  be  deemed  guilty  of  a 
misdemeanor,''  and  shall  be  punished  b^'  line  and  imprison- 
ment, as  tlierein  prescribed.  Section  12  of  the  same  chapter 
provides  tliat  at  all  elections  held  under  that  act,  the  polls  shall 
be  o|H'iied  at  sunrise  on  election  day.  And  by  section  8  it  is  pro- 
vided lliat  in  tlio  event  of  the  failure  of  any  judge  or  judges 
of  election  to  attend  at  the  polls  for  one  hour  after  the  time 
prescribed  for  opening  them,  the  judge  or  judges  in  attendance 
may  select  one  or  more  qualified  persons  to  serve  in  the  ])lace 
of  sucli  alisent  judge  or  judges. 

The  iiulictment  charges  that  tlio  plaintiff  in  error,  l)eing  one 
of  the  judges  of  election  at  the  said  voting  place,  on  the  said 
2d  day  of  Xovember,  1880,  "at  the  general  election  aforesaid, 
duly  selected  and  appointed  as  aforesaid,  and  in  the  execution 
of  his  said  oilico,    .     .    .    then  and  there  with  threats,  oppro- 


Ui 


AMERICAN  CRIMINAL  REPORTS, 


brious  language  and  menaces,  did  unlawfully,  corruptly  and 
Avilfully  prevent  Edward  B.  Moon  and  James  B.  Fitzgerald 
from  qualifying  and  acting  as  judges  of  said  election,  at  said 
voting  place,  and  from  entering  upon  the  performance  of  the 
duties  imposed  upon  tliem  by  law  touching  the  holding,  con- 
ducting and  certifying  t]ie  same."  It  avers  that  the  said 
Edward  B.  Moon  and  James  B.  Fitzgerald,  together  with  tlio 
plaintilF  in  error,  had  been  appointed  judges  of  election  for  the 
said  A'oting  place,  by  the  county  court  of  the  said  county,  at  its 
preceding  April  term,  and  that  the  acts  complained  of  were 
done  within  the  space  of  one  hour  after  sunrise  on  the  said 
2d  day  of  Xovember,  It  then  further  charges  as  follows: 
"That  he,  the  said  William  B.  Boyd"  [the  plaintilT  in  error], 
.  .  .  then  and  there,  "and  Avhilo  in  the  discharge  of  the 
functions  of  his  said  office,  did  unlawfully,  wilfully  aiul  cor- 
ruptl}^  select  and  appoint  two  other  male  citizens  of  said  dis- 
trict, to  Avit,  Willis  II.  Shields  and  Larkin  D.  Atkinson,  to  act 
as  judges  of  said  election,  in  the  place  of  the  said  Edward  B. 
Moon  and  James  B.  Fitzgerald,  he,  the  said  William  B.  Boyd, 
Avell  knowing,  and  at  the  time  of  said  selection  and  appoint- 
ment of  said  Shields  and  Atkinson  as  judges  as  aforesaid,  that 
the  said  Edward  B.  ]\[oon  and  James  B.  Fitzgerald  were  then 
and  there  desirous  to  qualif}'^  and  act  as  judges  at  said  election 
in  conjunction  Avith  [him]  the  said  Boyd,  and  were  then  and 
there  endeavoring  to  qualify  and  act  as  judges  at  said  election 
and  to  enter  upon  the  performance  of  the  duties  imposed  upon 
them  by  hiAv  as  such  judges." 

These  are  all  the  facts  and  circumstances  set  forth  in  the  in- 
dictment upon  Avhich  the  chargo  of  corrupt  conduct  on  the 
part  of  the  plaintiff  in  error  is  based.  Upon  his  ai)pea ranee  in 
the  county  court,  he  moA'ed  to  quash  the  indictment,  but  the 
motion  Avas  OA'erruled.  He  then  demui'red  to  the  indictment, 
and  the  demurrer  AA'as  overruled;  and  having  been  found 
guilty  by  the  jmy,  and  sentenced  b}^  the  court  in  accordance 
Avith  the  A'erdict,  he  applied  to  the  judge  of  the  circuit  court 
of  Pittsylvania  county  for  a  Avrit  of  error ;  Avhich  Avas  refused. 
Thereupon,  a  writ  of  error  Avas  awarded  him  by  one  of  the 
judges  of  this  court. 

The  first  error  assigned,  and  the  only  one  avo  deem  it  neces- 
sary to  consider,  is  that  the  court  erred  in  OA'erruling  the  mo- 


tion to 
demurrc 

It  is  a 
ing  that 
cumstanc 
the  act. 
the  intlic 
guiltv  of 
insullicie 
bo  at  coi 
not  sulHc 
the  sanu 
the  specie 

Api)ly 
conclusio 
sufficient 
acted  unl 
of  unlaw 
conduct,  1 
thoi'ofore, 
even  by 
selected  a 
their  dutii 
the  ofTens 

]\[oreov 
and  Fitzg 
election  a 
that  they 
month  of 
to  act  as 
may  have 
flees  to  1: 
expressly 
visions  of 
Avere  qual 
show  that 
lau'fully  li 
ing.  or  in 

In  an  ii 

in  ofilcc,  f 

Vol 


BOYD  r.  THE  COMMONWEALTH. 


tion  to  quash  the  indictment,  and  also  in  overruling   the 
demurrer  to  the  same. 

It  is  a  familiar  and  elementary  principle  of  criminal  plead- 
ing that  an  indictment  upon  a  statute  must  state  all  the  eir- 
cunistances  which  constitute  the  definition  of  the  offense  in 
the  act.  so  as  to  bring  the  defendant  precisely  within  it.  If 
the  indictment  may  be  true,  and  still  the  accused  may  not  be 
guilty  of  the  offense  described  in  the  statute,  the  indictment  is 
insufficient.  So,  where  the  definition  of  an  offense,  Avhothcr  it 
he  at  common  law  or  by  statute,  includes  generic  terms,  it  is 
not  sulficient  that  the  indictment  shall  charge  the  offense  in 
the  same  generic  terms  as  in  the  definition;  but  it  must  state 
the  species — ^it  must  descend  to  particulars. 

Ap])ly  tlioso  principles  to  the  indictment  before  us,  and  the 
conclusion  is  irreslstiljle  that  it  is  fatally  defective.  It  is  not 
sufficient  to  sustain  the  indictment  that  the  plaintiff  in  error 
acted  unlawfully  merely.  A  judge  of  election  may  be  guilty 
of  unlawful  conduct,  and  yet  not  necessarily  guilty  of  corrupt 
conduct,  in  the  discharge  of  his  official  duties.  Conceding, 
therefore,  that  the  plaintiff  in  error  unlawfully,  by  threats,  or 
even  by  acts  of  violence,  prevented  those  Avho  liad  been 
selected  as  his  associate  judges  of  election,  from  discharging 
their  duties,  it  docs  not  necessarily  follow  that  he  is  guilty  of 
the  offense  for  which  he  was  indicted  and  convicted. 

^[oroover,  for  aught  that  appears  in  the  indictment,  IVfoon 
and  Fit/gerald  may  have  been  disqualified  to  act  as  judges  of 
election  at  the  time  and  place  specified.  It  is  true  it  is  averred 
that  they  had  l)een  duly  appointed  judges  of  election  in  the 
month  of  A])ril  preceding;  but  non  constat  they  wercqualified 
to  act  as  such  on  the  2(1  day  of  Xovember,  ISSO.  The  fact 
may  have  beiMi  that  on  that  day  they  were  candidates  for  of- 
fices to  bo  filled  at  the  election  then  held,  and  therefore 
expressly  forbidden  to  act  as  judges  of  the  election  by  the  pro- 
visions of  th(^  statute  relating  to  election.  But  conceding  they 
were  qualified  to  serve,  there  is  nothing  in  the  indictment  to 
slioM'  that  the  jilaintiff  in  error  acted  cn)'ri'j)f/>/  —  however  un- 
lawfully he  may  ha\e  acted  —  in  preventing  them  from  so  serv- , 
ing.  or  in  selecting  Shields  and  Atkinson  to  act  in  their  places. 

In  an  indictment  against  an  ofiicer  for  corrupt  misbehavior 
in  office,  says  AVharton,  "  it  is  necessary  that  an  act  imputed 
Vol.  I V— 10 


146 


AMERICAN  CRIMINAL  REPORTS. 


as  mibbehavioi'  be  distinctly  and  substantially  charged  to  have 
been  done  with  corrupt  .  .  .  motives,  and,  above  all,  with 
knowledge  that  it  was  wrong,  though  there  are  no  technical 
words  indispensably  required  in  which  the  charge  of  corruption 
shall  be  made.  It  is  otherwise,  however,  in  neglects  and  in 
cases  where  bare  acts  are  made  indictable  irrespective  of  in- 
tent." 2  "Whai't.  Criminal  Law,  sec,  2518.  See,  also,  JacoU 
and  others  v.  Commomoealth,  2  Leigh,  709;  Pco])le  v.  Coon,  1 
Wend.,  277;  Slate  v.  Buxton,  2  Swann  (Tenn.),  57. 
'  It  is  needless  to  say  more.  It  is  plain  that  the  indictment 
lacks  the  certainty  and  precision  required  by  the  established 
rules  of  criminal  pleading,  and  that  the  county  court  erred  in 
overruling  the  defendant's  motion  to  quash  the  indictment, 
and  afterwards  in  overruling  his  demurrer  to  the  same. 

The  judgment  of  the  county  court  must  thei'cfore  be  reversed, 
the  verdict  of  the  jury  set  aside,  and  the  plaintiff  in  error  dis- 
charged from  further  prosecution  under  the  said  indictment. 


Gkise  v.  The  State. 

(37  Ai-k.,  450.) 

Cruelty  to  ammals. 

1.  Cruelty  to  animals— Construction  op  statute.— Tlie  terra  "nocd- 

leasly,"  in  the  act  "for  the  prevention  of  cruelty  to  animal!^,"  means  an 
act  done  without  any  useful  motive,  in  a  spirit  of  wanton  cruelty,  or 
for  the  mere  pleasure  of  destruction. 

2.  Same  — Burden  of  proof.- The  burden  of  proof  was  upon  tho  state  to 

show  not  only  tho  killing,  but  that  it  was  done  under  such  circuinstancrs 
a3,  unexplained,  would  authorize  tho  jury  to  believe  that  it  was  }ieccUcss 
in  the  sense  of  the  statute. 

3.  Same— Useful  object  in  killing.- However  unlaAvful  the  act  may  he, 

and  whatever  penalties  might  be  incurred  under  other  sections  of  tho 
statute,  tho  defendant  should  not  be  convicted  under  an  indii-tnicnt  upon 
the  particular  section  of  the  statute,  if  he  had  some  useful  object  in  tho 
killing,  such  as  the  protection  of  his  wheat  and  corn. 

Appeal  from  Logan  Circuit  Court.    Hon.  J.  II.  Rogers,  Cir- 
cuit Judge. 

G.  B.  Moore,  attorney-general,  for  the  state. 

The  opinion  states  the  case. 


Eakin,  . 
]\rarch  11 
TIio  first  1 
Icssly  mut 
indictmcn 
needlessly 
tiiro.    No 

The  pro 
appolliint  J 
on  the  he 
was  in  a  fi 
Avcra  grow 
tvc:i|);issinf 
cdly  a})pli 
tliom  out 
were  ar'air 

O 

(>gain  in  a] 
circuiustan 
at  one  \Ao\ 

On  defei 
pig  luul  be 
tended  far 
could  easi! 
fence,  and 

There  w 
tending  to 
all  of  whic 
of  tho  res 
Payment  t 
the  sense  o 
tion  aggra 

Upon  th 
refused  tin 
own  niotio: 
giiilty  and 
trial  upon 
asked;  in 
because  tin 
Avas  refuse* 

This  cou 


GEISE  V.  THE  STATE. 


147 


E.vKiN,  J.  The  appellant  was  indicted  under  an  act  approved 
IMarcli  11,  1879,  "For  the  prevention  of  cruelty  to  animals." 
The  first  section,  infer  alia,  makes  it  a  misdemeanor  to  need- 


lessly mutilate  or  kill " 


any  living  creature."    The 


indictment  simply  charges  that  appellant  did,  unlawfully  and 
needlessly,  kill  a  hog,  of  the  value  of  $5,  being  a  living  crea- 
ture.   No  allegations  of  value  or  ownership  were  essential. 

The  proof  on  the  part  of  the  state  tended  to  show  that  the 
appellant  had  killed  a  pig  belonging  to  a  neighbor,  by  a  blow 
on  tlie  head  with  a  stick,  producing  sudden  death.  The  pig 
was  in  a  Hold  belonging  to  appellant  in  which  corn  and  wheat 
Avcro  growing.  It  had,  before  that  time,  been  in  the  habit  of 
trc:ipassing  tliere  with  others,  and  the  defendant  had  repeat- 
edly a})plied  to  the  owner,  a  lady,  to  pen  her  hogs  or  keep 
tlioni  out  of  his  field.  This  for  a  while  she  did.  But  they 
were  again  turned  out,  and  the  one  in  question  being  found 
5^gain  in  appellant's  lield,  he  killed  it  on  the  spot,  Avith  no  more 
circumstances  of  cruelty  than  would  attend  the  taking  of  life 
at  one  blow. 

On  defendant's  part  the  proof  —  besides  showing  that  the 
pig  had  been  several  times  i  if  the  field  eating  corn  and  wheat  — 
tondo'l  farther  to  show  that  it  was  a  very  small  one,  which 
could  easily  get  between  the  rails  of  any  ordinary  country 
fence,  and  that  there  was  around  that  field  a  very  good  fence. 

There  was  proof  on  both  sides  as  to  the  value,  aiul  some 
tending  to  show  that  appellant  had  paid  the  value  to  the  owner, 
all  of  which  was  entirely  irrelevant,  save  as  it  might,  as  part 
of  the  res  (jcstcc,  show  the  purpose  or  motive  of  the  killing. 
Payment  to  the  owner  coidd  not  atone  it  if  it  Avcre  need/ess  in 
the  sense  of  the  statute,  nor  would  failure  to  make  compensa- 
tion aggravate  the  offense. 

Upon  the  trial,  defendant  asked  six  instructions,  which  were 
refused  throughout.  In  lieu  thereof  the  court  gave  two  of  its 
own  motion  —  all  against  objection.  The  defendant  was  found 
guilty  and  sentenced  to  a  fine  of  $2.  lie  moved  for  a  new 
trial  upf)n  the  grounds  of  error  in  refusing  the  instructions 
asked;  in  giving  those  by  the  court  of  its  own  motion;  and 
because  the  verdict  was  against  law  and  evidence.  The  motion 
was  refused  and  he  appealed. 

This  court  is  called  for  the  first  time  to  construe  a  now  stat- 


lis 


AMERICAN  CRIMINAL  REPORTS, 


ute,  belonging  to  a  class  which  must  ever  be  more  or  ]ck;  vague 
in  their  meaning,  and  extremely  difficult  of  administrulion. 
The_y  are  the  outgrowth  of  modern  sentiment,  and  arc  of  com- 
paratively recent  origin.  They  attempt  to  transcend  what 
had  been  thought,  at  common  law,  the  practical  limits  of  nui- 
nicipal  government.  They  sprung,  originally,  from  tentative 
efforts  of  the  Xcw  England  colonists  to  enforce  impt  rfect,  but 
well  recognized  moral  obligations;  a  thing  much  more  practi- 
cable in  small,  isolated  communities  than  in  populous  govoin- 
ments.  They  first  had  in  view  only  to  compel  bcnevolcuco 
and  mercy  to  those  useful  animals,  which,  being  domesticated 
and  Avasting  their  lives  in  man's  service,  Avere  supposed  to  l)o 
entitled  to  his  kind  and  humane  consideration.  Sucli  statutes 
appealed  strongly  to  the  instincts  of  humanity.  They  were 
adopted  in  many  of  the  states,  and  recently  in  England ;  and 
tlie  impulse  Avhich  favored  them  has  endeavored  to  enlarge 
their  beneficence,  until,  in  our  laAV,  they  are  made  to  embrace 
"  all  living  creatures." 

It  is  obvious  that  laws  of  this  class,  pressed  to  this  extreme 
limit,  must  be  handled  by  the  co^u'ts  with  great  care,  and  wo 
feel  it  due  the  legislature  to  do  so,  to  prevent  their  becoming 
dead  letters.  They  must  be  rationally  construed  Avitli  refoienco 
to  their  true  spirit  and  intention.  It  must  be  kept  in  mind  that 
they  are  not  directed  at  all  to  the  usual  objects  of  muuicij)al  law, 
as  laid  down  by  Elackstone.  For  example:  Thoy  are  not  made 
for  the  protection  of  the  absolute  or  relative  rights  of  ])ersoiis, 
or  the  rights  of  men  to  the  acquisition  and  enjoyment  of  prop- 
erty, or  the  peace  of  society.  They  seem  to  recognize  an  attempt 
to  protect  some  abstract  rights,  in  all  that  aninuito  creation, 
made  subject  to  man  by  the  creation,  from  the  largest  and 
noblest  to  the  smallest  and  most  insignificant.  The  rights  of 
persons  and  the  security  of  property  and  the  public  peace  are 
all  ])rotected  by  other  laws,  Avith  appropriate  sanctions.  Tlie 
objects  of  the  two  classes  should  not  be  confounded.  It  Avill 
lead  to  Iiopeless  confusion.  The  peculiar  legislation  Ave  are 
now  called  to  discuss  must  be  considered  wholly  irrespective  of 
property,  or  of  the  public  peace,  or  of  the  inconveniences  of 
nuisances.  The  misdemeanors  attempted  to  be  defined  may 
be  as  well  perpetrated  u])on  a  man's  own  property  as  another's, 
or  upon  creatures  the  property  of  no  one,  and  so  far  as  one  act 


is  concern 
refined  nn 
or  in  the  s 

It  is  in  1 
tliem,  if  p 
such  absui 
letters.  I 
Society,  fc 
Avhich  mi<i 
impale  a  I 
kittens,  to 
Such  laws 
their  obje( 
pro]icrty,  ( 
.sequences 
intemled. 
ful  in  elev;' 
all  Ciod's 
fthough  res 
judge  fron 
guiue  hope 
may  pract 
co-operate 
Avarrant. 

There  ai 
pass,  and  c 
chief  and 
indictment 
ai)[)licable 
They  shou] 
the  Individ 
damages  f( 
lout  aggrt 
indictment 
a  substituti 
•needlessly 
state  to  sh( 
such  circui; 
believe  tha 
coutrovers 


GRISE  V.  THE  STATE. 


149 


is  concerned,  it  is  all  the  same  Avlicthcr  the  acts  bo  done  amongst 
renucd  men  and  women,  Avhose  sensibilities  Avould  be  shocked, 
or  in  the  solitude  of  closed  rooms  or  secluded  forests. 

It  is  in  this  view  that  such  acts  are  to  bo  construed  to  give 
them,  if  possiljle,  some  bcnellcent  effect,  without  running  into 
siicli  absurdities  as  wouhl,  in  the  end,  make  them  mere  dead 
letters.  A  literal  construction  of  them  would  have  that  effect. 
Society,  for  instance,  could  not  long  tolerate  a  system  of  laws 
which  might  drag  to  the  criminal  bar  every  lady  Avho  might 
impale  a  butterfly,  or  every  man  who  might  drown  a  litter  of 
kittens,  to  answer  there,  and  show  that  the  act  Avas  needful. 
Sucli  laws  must  be  rationally  considered,  with  reference  to 
their  objects,  not  as  the  means  of  preventing  aggressions  upon 
property,  (otherwise  unlawful;  nor  so  as  to  involve  absurd  con- 
se(piences  which  the  legislature  cannot  be  sup]iosed  to  have 
iutomled.  So  construed,  this  class  of  huys  may  be  found  use- 
ful in  elevating  hunuiuity  by  enlargement  of  its  sympathy  Avith 
all  God's  creatures,  and  thus  society  may  be  improved.  Al- 
♦though  results  in  other  states  and  in  England  have  not,  as  wo 
judge  from  the  paucity  of  decisions,  been  such  as  to  ex'cite  san- 
guine hopes,  yet  to  a  limited  extent  the  objects  of  the  huvs 
may  })ractically  be  obtained.  It  is  the  duty  of  the  coui't  to 
co-o[)erate  to  that  end,  so  far  as  the  rules  of  construction  may 
warrant. 

There  arc  civil  laws  for  the  recovery  of  damages  foi*  tres- 
pass, and  criminal  laws  for  the  punishment  of  malicious  mis- 
chief and  tre;-!i)ass  and  injury  to  projjerty.  In  a  suit  or 
imlictnieut  under  these,  there  are  appropriate  defenses,  not 
applicable  to  an  indictment  for  cruelty  or  for  needless  killing. 
They  should,  one  or  the  other  of  them,  have  been  resorted  to  by 
the  individual  or  tiio  state,  if  the  object  had  been  to  recover 
(huiiages  for  the  loss  of  the  pig,  or  to  protect  society  from  vio- 
lent aggressions  on  ])roj)erty.  The  law  under  which  this 
imlictMient  was  framed  has  no  such  object,  and  cannot  lie  nnido 
a  substitute  for  the  others.  The  issue  was,  did  the  defendant 
needlessly  kill  the  pig?  The  burden  of  proof  was  upon  the 
state  to  show  not  only  the  killing,  but  that  it  Avas  done  under 
such  circumstances  as,  unexplained,  would  authorize  the  jury  to 
believe  that  it  Avas  needless  in  the  sense  of  the  statute.  The 
controversy  does  not  turn  at  all  upon  the  lawfulness  or  unlaw- 


150 


AMERICAN  CRIMINAL  REPORTS. 


fulness  of  the  act,  except  in  so  far  as  the  statute  itself  might 
make  it  unlawful  as  needless. 

From  the  view  we  have  taken  of  the  nature  and  scope  of 
this  class  of  acts,  it  it  obvious  that  the  term  "needless"  cannot 
be  reasonabl}^  construed  as  characterizing  an  act  which  miglit 
by  care  be  avoided.  It  simj)ly  means  an  act  done  witliout 
any  useful  motive,  in  a  s])irit  of  wanton  cruelty,  or  for  tho 
mere  pleasm'e  of  destruction.  Other  portions  of  tho  act  arc 
directed  to  prevent  undue  torture  or  suffering,  which  do  not 
come  here  in  question.  However  unlawful  the  act  may  bo,  and 
whatever  penaltief  might  be  incurred  under  the  statute:^,  llio 
defendant  should  not,  under  this  indictment,  have  been  con- 
victed if  he  had  some  useful  object  in  tho  killing,  such  a;i  tho 
protection  of  his  wheat  and  corn. 

The  provisions  of  different  statutes  must  bo  regarded,  iuid 
acts  really  criminal  must  be  punished  under  appropriate  indict- 
ments.   Malicious  mischief  and  needless  killing  are  distinct. 

The  defendant,  in  effect,  asked  tlie  court  to  insti'uct : 

Fli'st.  That  the  burden  was  on  the  state  to  show  not  only 
the  killing,  but  that  it  was  needless,  and  tliat  "  needless  "  nu-aiit 
a  killing  in  mere  idle  wantonness,  without  being  in  any  sense 
whatever  beneficial  or  useful  to  defendant. 

Second.  That  it  was  for  the  jury  to  determine  whollior  or 
not  it  was  "  needless,"  and  that  they  might  consider  tlio  fads 
that  the  pig  was  found  in  the  field  where  there  Avas  corn  and 
wheat,  that  it  had  frequently  been  there  before,  and  all  other 
facts  and  circumstances  in  evidence. 

Third.  That  the  jury  nmst  find  before  conviction  tluit  ihvw. 
was  no  necessity  or  cause  wliatevcr  for  the  defendant  to  kill 
the  animal. 

Fourth.  That  considering  the  circumstances,  if  the  jury 
found  that  the  animal  was  trespassing  upon  tho  defendant's 
crops  and  destroying  them,  and  that  ho  had  up  to  the  tinu!  of 
the  killing  used  all  reasonable  means  to  prevent  it,  and  that  llui 
act  of  killing  did  prevent  it,  they  would  be  warranted  in  find- 
ing that  it  was  not  needless. 

Fifth.  That  the  Avord  "  needlessly,"  used  in  tho  statute,  re- 
lates to  a  wanton  and  cruel  act,  and  not  to  one  which  is  tho 
result  of  necessity,  or  reasonable  cause. 

8ixth.    That  unless  the  defendant  was  guilty  of  wanton  and 


GRISE  V.  THE  STATE. 


161 


neccllcss  acis  of  cruelty  to  the  animal,  resulting  in  unjustifiable 
physical  pain,  they  should  acquit. 

We  think  that  the  spirit  of  all  the  foregoing  instructions, 
except  tlic  last,  was  in  harmony  with  the  true  intent  and  mean- 
injr  of  the  act  —  as  nearly  so  as  moral  acts  can  be  characterized 
by  the  formulas  of  language  —  at  all  times  a  difficult  task.  They 
are  very  nearly  in  accord  Avith  the  views  we  take  of  the  statute. 
The  last  was  erroneous.  A  needless  killing  could  not  be  justi- 
fied by  an  easy  death.  Cruelty  was  no  part  of  the  charge, 
althouirh  it  is  made  criminal  under  the  other  sections. 

The  instructions  given  by  the  court,  of  its  own  motion,  were 
as  follows : 

First.  That  the  proof  of  killing  a  pig  would  support  the 
allegation  of  the  killing  of  a  hog. 

This  is  unquestionably  correct. 

Second.  "If  the  jury  believe  fi'om  the  evidence  that  de- 
fendant, in  this  county,"  etc.,  .  .  .  "needlessly  killed  the 
animal  mentioned  in  the  indictment,  they  should  convict,  not- 
withstanding it  may  have  been  trespassing  within  defendant's 
inclosurc  at  the  time  it  was  killed.  'Keedlessly'  means  with- 
out necessity,  or  unnecessarily;  as  where  one  kills  a  domesti- 
cated animal  of  another,  either  in  mere  wantonness  or  to  satisfy 
a  depraved  disposition,  or  for  sport  or  pastime,  or  to  gratify 
one's  anger,  or  for  any  other  unlawful  purpose." 

But  for  the  last  clause  of  this  instruction,  it  would  not  be, 
in  the  abstract,  subject  to  criticism,  but  it  is,  we  think,  errone- 
ous in  holding  all  killing  needless,  in  the  sense  of  the  statute, 
done  for  an  unlawful  purpose.  For  unlawful  trespasses,  other 
remedies  are  provided.  There  are  other  statutes  for  their  pro- 
hibition. All  acts  of  killing  are  not  "  needless,"  in  the  mean- 
ing of  the  statute,  which  are  unlawful.  A  man,  for  instance, 
might  kill  his  neighbor's  sheep  for  food,  Avhicli  would  be  un- 
lawful, and  either  a  trespass  or  felony,  according  to  the  cir- 
cumstances; but  such  killing  could  not,  Avith  any  show  of 
reason,  come  within  the  intention  of  the  act  in  question.  The 
lawfulness  or  unlawfulness  of  the  act  has  really  no  bearing 
upon  its  character  as  charged. 

Had  the  last  clause  been  omitted  in  this  instruction,  it  would 
not,  however,  have  been  sufficiently  instructive  in  all  points  to 
have  caused  the  refusal  to  give  the  defendant's  first  five  in- 


152 


AMERICAN  CRIMINAL  REPORTS. 


structions,  in  substance,  as  asked.  He  was  entitled  to  have 
tliem  pui'ticularly  impressed  upon  the  jury  in  a  matter  wliich, 
being  new,  they  might  misapprehend. 

The  lirst  of  the  English  statutes  directed  to  the  enforcement 
of  benevolence  and  kindness  to  inferior  animals  was  i)assed  in 
1822.  It  was  to  prevent  "  cruel  and  improper  treatment  of 
cattle."  It  contained  a  provision  that,  "  if  the  complaint 
should  appear  to  the  magistrate  on  the  hearing  to  be  fiivolous 
or  vexatious,  then  the  complainant  was  to  be  ordered  to  pay  to 
defendant  any  sum  of  mone^',  not  exceeding  the  sum  of  twenty 
shillings,  as  compensation  for  the  trouble  and  expense  to 
which  said  party  may  have  been  put  by  such  complaint." 

This  was  a  wise  precaution.  The  case  now  before  us  is 
strongly  suggestive  of  the  necessity  of  some  such  safeguard  in 
the  administration  of  the  statute  of  much  wider  scope,  em- 
braciig  all  living  creatures.  This  is  a  inatter,  however,  for 
the  legislative  department.  The  power  of  the  judiciary  only 
extends  to  see  that  a  statute,  so  well  intended,  shall  not  be  ex- 
tended to  absurd  consequences,  and  brought  into  contempt  by 
too  literal  a  construction  of  language. 

For  error  in  overruling  the  motion  for  a  new  trial,  reverse 
the  judgment,  and  remand  the  cause  for  further  proceedings, 
consistent  with  law  and  this  opinion. 


Eevkolds  v.  The  State. 

(68  Ala.,  502.) 

Dying  declarations:  Other  evidence  of  same  facts. 

1.  Dying  declarations  are  admissible  only  in  cases  of  homicide,  when  the 

death  of  the  deceased  is  the  subject  of  the  charge,  and  the  circumstances 
of  the  death  the  subject  of  the  declarations. 

2.  They  are  inadmissible  when  they  relate  to  facts  unconnected  with  the 

declarant's  death. 
8.  If  they  wore  made  under  a  sense  of  impending  dissolution,  it  matters  not 

that  death  did  not  ensue  for  a  considerable  time  thereafter. 
4.  There  is  no  rule  which  would  exclude  them  because  the  circumstances 

producing  and  attending  the  death  can  be  shown  by  other  evidence. 


From  t 
II.  C.  Spt 

//.  0.  'i 

HoMK'.iV 

cases  of  li 
joct  of  til 
subject  o 
Cr.  Cases 
"to  ident 
circunisla 
fvo;u  wlii 
Brick.  ])i/ 

AVlion, 
tions,  and 
tra'-ing  o 
iualiuissil 
sou,  there 
himself  a: 
conip..'ten 
Ala.,  103. 

Tlioy  m 
dissohitioi 
until  a  CO 
Whart.  Ci 
hnuicdiat( 
in  point  o 
Ev.,  §  15S 
made  afte 
tluit  lie  wj 
thorize  th' 
JoJuimn.  V 

And,  al 
on  the  })i'i 
exclude  it 
of  witness 
producing 
impractie; 
reasons  w 
deuce.    1 


KEYNOLDS  v.  THE  STATE. 


tm 


From  tliG  Circuit  Court  of  Limestouo.  Tried  before  tlic  Hon. 
II.  C.  Speiike. 

//.  0.  TomJans,  attornej^-goneral,  for  the  state. 

Su^rI;!iVILU•;,  J.  Dying  declarations  are  admissible  only  in 
cast's  of  homicide,  Avhere  the  death  of  the  deceased  is  the  sub- 
ject of  the  charg-e,  and  the  circumstances  of  the  death  arc  the 
subjocfc  of  such  declarations.  1  Greenl.  Ev.,  §  150;  2  Lead. 
Cr.  Cases  (IJ.  A:  II.),  2152,  In  other  words,  they  are  adndtted 
"to  identify  the  prisoner  and  the  deceased,  to  establish  the 
circums'uuices  of  the  res  gedtv,  and  to  show  the  transactions 
from  which  the  death  results."  AVluirt.  Cr.  Ev.,  §  2TS;  I 
Brick.  Dig.,  p.  511,  §  801;  Clark's  Cr.  Dig.,  §  355. 

When,  however,  they  relate  to  former  and  distinct  transac- 
tions, and  embrace  facts  or  circunistances  not  immediately  illus- 
trating or  connected  with  the  declarant's  death,  they  are 
ina  Imisslble.  Id.  The  dying  declarations  of  a  deceased  per- 
son, therefore,  showing  the  state  of  feeling  existing  between 
himself  and  a  defendant  charged  with  his  homicide,  are  not 
conipLitent  evidence  for  the  prosecution.  Ijoi  v.  Tlte  State,  37 
Ala.,  103. 

Tliey  must,  of  course,  be  uttered  under  a  sense  of  impending 
dissohition,  and  it  does  not  nuitter  duit  death  failed  to  ensue 
until  a  considerable  time  after  such  declarations  were  made. 
Whart.  Cr.  Ev.,  §§  282,  280.  ''  It  is  the  impression  of  almost 
inmiediato  dissolution,  and  not  the  rapid  succession  of  death 
in  point  of  fact,  that  renders  the  testimony  admissible."  1  Gr. 
Ev.,  j5  158.  If  it  appear  from  the  statement  of  the  deceased, 
made  after  he  was  fatally  wounded,  that  ho  knew  or  thought 
that  lie  was  in  extremis,  this  Avould  clearly  be  sufliciont  to  au- 
thorize the  introduction  of  his  declarations  made  at  such  time. 
John  mil  V.  State,  47  AJa.,  9. 

And,  altliough  it  is  often  said  that  such  evidence  is  tolerated 
on  the  principle  of  necessity,  we  know  of  no  rule  Avhich  would 
exclude  it  where  there  is  other,  and  even  undisputed,  testimony 
of  witnesses  detailing  the  cause  of  death  and  the  circumstances 
producing  and  attending  it.  A  rule  of  this  character  would  be 
impracticable  in  its  application,  and  antagonistic  to  the  weighty 
reasons  which  sanction  the  admission  of  this  species  of  evi- 
dence.   1  Greenl.  Ev.  §  15G;  Whart.  Cr.  Ev.,  §  276. 


154 


AMERICAN  CRIMINAL  REPORTS. 


Tho  (lying  declarations  of  the  tleceased,  in  this  case,  were 
clearly  admissible  in  the  light  of  the  above  principles.  He 
knew  that  he  Avas  in  extremis,  and  his  utterances  related  to  the 
circumstances  immediately  attending  tho  killing,  except  the 
declaration  that  "he  had  nothing  against  the  defendant,  and 
did  not  know  that  defendant  had  anything  against  him,"  This 
part  of  the  evidence  should  have  been  excluded,  if  properly 
pointed  out  and  objected  to  as  illegal.  But  the  objection  wan 
to  the  declarations  as  a  whole,  and  a  part  of  the  evidence  beiny 
admissible  there  was  no  error  in  refusing  to  exclude  it.  Shorter 
V.  State,  G3  Ala.,  129;  Brown  v.  State,  52  Ala.,  349. 

Tho  admission  by  the  court  of  the  cumulative  testimony 
elicited  on  tho  rebutting  examination  of  McClellan  v/as  not 
sm-h.  an  error  as  will  authorize  tho  appellate  court  to  rcncrso 
the  judgment  in  tho  cause.  It  is  true,  that,  as  to  new  matter, 
a  party  cannot  ordinarily  re-examine  a  witness  in  rebuttal; 
but,  if  tlie  nt'fil  pr/'iis  court,  in  its  discretion,  sees  fit  to  pevmit 
it,  such  ruling  is  not  reviewable  on  appeal.  1  "NVhait.  Ev., 
§§  572,  571:;  Borland  v.  2Lai)o,  8  Ala.,  104;  Fant  v.  Cathcart, 
id.,  725. 

Exceptions  are  required  to  bo  taken  during  the  progress  of 
tho  trial  and  before  tho  jury  leave  tlie  bar  of  the  court;  other- 
Avise  tlioycomo  too  late.  A  statement,  therefore,  in  the  bill  of 
exceptions,  that  "the  defendant  excepts"  to  any  ruling  or 
action  of  tho  court,  may  not  ah\'ays  bo  sufficient.  1  iJrick, 
Dig.,  p.  21(1,  §§  58-61. 

Tho  judgment  entry  in  this  case  is  regular,  reciting  tlio 
proper  organization  of  the  jury,  tho  arraignment  of  tiio  pris- 
oner, tho  plea  of  "  not  guilty,"  and  the  other  incidents  of  tho 
trial.  The  record  is,  however,  contradicted  by  tho  bill  of  ex- 
ceptions, which  shows  that  the  jury  was  selected  and  sworn 
before  tho  prisoner  was  arraigned  and  pleaded  to  the  indict- 
ment. If  this  ^'— -e  an  error,  there  was  no  objection  interposed 
at  the  timo  to  tlie  proceeding,  in  the  form  of  an  exception  or 
otlierwise,  and  hence  no  (piestion  is  presented  for  tho  consider- 
ation of  the  appellate  court. 

The  prisoner  has  nothing  to  complain  of  in  the  sentence  of 
the  court.  Tho  first  sentence,  it  is  true,  was  erroneous,  by 
reason  of  a  failure  on  the  part  of  the  presiding  judge  to  first 
ask  the  prisoner  if  he  had  anything  to  say  why  the  sentence 


PAYNE  V.  THE  STATE. 


155 


of  the  law  should  not  bo  pronounced  upon  him.  But  this  ir- 
regularity was  fully  cured  by  again  calling-  him  to  the  bar  and 
re-imposing  the  sentence  in  accordance  with  the  retpiircments 
of  law. 

We  find  no  error  in  the  record,  and  the  judgment  of  the  cir- 
cuit court  is  hereby  affirmed. 


Payne  v.  The  State. 
(ClMiss.^101.) 

DYINa  DEC'L-IBATIONS. 

1.  DYiN'a  DncT-.VRATiONS  — Other  evidence  op  same  facts.— Dying  decla- 

rations are  admissible  in  evidence,  although  the  facts  which  they  tend  to 
estal)lish  may  be  proved  by  other  testimony. 

2.  Samr  — Opiniom  or  in-ferkn-ce.— Tlie  declarant's  assertion  that  the  ac- 

cused shot  him  without  cause  is  not  an  inference  or  opinion,  but  lu3 
statement  of  a  fact,  and  is  admissible  in  evidence. 

Appeal  from  the  Circuit  Court  of  Do  Soto  County.  Hon. 
A.  T.  Iloane,  Judge. 

W/iifc  ct"  Morgan,  for  appellant. 

T.  C.  Catchings,  attorney -general,  for  the  state. 

Campuell,  C.  J.,  delivered  the  opinion  of  the  court. 

It  is  not  a  valid  objection  to  the  admission  of  dying  declara- 
tions that  the  facts  sought  to  be  established  by  them  may  be 
proved  by  other  witnesses  than  the  decedent.  Such  declara- 
tions are  admissible  only  as  to  the  circumstances  of  the  killing, 
and  are  restricted  to  a  statement  of  facts  and  opinions,  and  in- 
ferences are  to  bo  excluded ;  but  the  dying  declaration  admitted 
in  this  case  was  of  a  fact  and  not  an  opinion  or  inference  of 
the  declarant.  It  was  that  the  defendant  shot  him  without 
cause.  It  was  not  error  to  admit  this  declaration.  Wroe  v. 
State,  20  Ohio  St.,  400. 

Judgment  affirmed. 

Note. — Dying  declarations  are  admissible  when  made  under  a  sense  of 
impending  dissolution  although  death  may  not  in  fact  ensue  for  seventeen 
days  afterward.    Loivry  v.  State,  13  Lea  (Tenn.),  143. 

It  is  not  necessary  that  each  witness  testifying  to  a  dying  declai-ation 


156 


a:vierican  criminal  reorts. 


should  definitely  fix  the  belief  of  the  person  making  the  declaration  that 
death  was  imminent.  Tlie  sense  of  impending  dissolution  may  be  shown  by 
one  witness,  and  the  declaration  proved  by  another.  People  v.  Garcia,  63 
Cal.,  19. 

Such  declarations  are  admissible  only  as  to  those  things  to  which  the  de- 
clarant would  have  been  competent  to  testify  if  sworn  in  the  case ;  and  whore 
deceased,  who  was  shot  at  night  m  the  house,  from  tlie  outside,  through 
iiu  aperture,  declared  while  in  extremis  "  it  was  E.  W.  wlio  shot  me,  tliougli 
I  did  not  sec  him,"  held,  that  the  declaration  was  inadmissible,  being  merely 
the  expression  of  the  opinion  of  the  deceased.  State  v.  Williams  aiulAveri/. 
67  X.  C,  13. 

Declarations  to  the  effect  that  the  prisoner,  who  was  one  of  his  emi)loyer";i 
slaves,  "  was  the  only  slave  on  the  place  who  was  at  enmity  wltli  him,"'  an' 
not  competent  evidence  against  the  prisoner.    Muses  v.  State,  oo  Ala.,  4'.21. 

The  weak  condition  of  mind  of  the  dednrant  does  not  render  his  stab- 
ments  inadmissible,  but  wlieu  it  appears  that  ho  was  in  .such  condition  of 
mind  that  he  did  not  fully  comprehend  all  that  was  said  to  him  at  the  time 
of  making  tlie  statements,  they  are  not  entitled  to  much  weight  and  would 
not  alone  sustain  a  vei'dict  of  guilty,    Murphy  r.  The  People,  o7  111.,  117. 

Dcelurations  of  the  deceased  of  the  eireitmstaiiecs  attendiiiy  the  difji- 
cidtjj.  The  narration  of  the  deceased  of  tlio  circumstances  of  the  dilliculty, 
several  minutes  after  it  had  ended  and  the  accused  bad  withdrawn-  from 
the  scene,  are  not  admissible  unless  part  of  tlie  res  gesta'.  Kramer  v.  Slate, 
Gl  Miss.,  158. 

TJie  declaration  of  the  injured  jiarly.  made  a  few  minutes  after  the 
eiK'ounter  in  which  he  was  shot,  under  circumstniices  wliii'li  it  was  un- 
reasonable to  suppo.so  that  there  was  time  or  cajtacity  to  fjibriciite  a  story, 
are  admissible  as  part  of  the  res  (jest'r.     Kirb//  r.  Com.,  77  Va.,  081. 

On  tlio  trial  of  an  indictment  for  the  murder  of  an  olUcer  in  the  dis- 
charge of  his  duty,  the  wife  of  the  deceased,  l)eing  called  as  a  witness  for 
the  prosecution,  vas  permitted  to  state  that  the  iirisoner's  fatlier  ( iune  to 
the  house  of  the  deceased  in  tlie  evening  of  the  day  of  the  homicide,  and 
informed  hiin  that  the  accused  had  Just  been  committing  a  breach  of  the 
peace,  and  reipiested  the  deceased  to  go  and  arrest  him.  and  that  tlie  de- 
ceased said,  as  he  left  the  house  with  the  fatlier  of  tlie  prisoner,  tliat  be  was 
going  to  arrest  "  Chip  Smith,"  meaning  tlie  prisoner,  it  was  held  the  evi- 
dence was  admissible;  that  if  the  ofTicer  believed  a  Invaeh  of  tb(>  peace  iuid 
been  committed,  as  the  father  of  the  prisoner  stated,  and  as  lie  made  tlio 
arrest  witliout  a  warrant,  it  was  proper  for  the  state  to  show  that  lie  acted 
in  good  faith,  and  upon  speedy  information  of  some  one  claiming  to  have 
per'.unal  knowleilge  of  the  facts.  AVhat  the  deceased  said,  when  leaving  liis 
bouse,  was  manifestly  admissible  as  ])art  of  the  res  ycsta'.  State  v.  Smith, 
49  Conn.,  370;  Iliinter  v.  State,  40  N.  J.,  538. 


STATE  OF  ILLINOIS  v.  FLETCHER. 


157 


State  of  .Illinois  v.  Fletcher. 

(23Fed.  Rep.,  77C.) 

Electiox:  Commission  of  crime  by  United  States  officer — Jurisdiclio7i. 

Federal  election  —  Cojunssiox  op  cuijie  — United  States  officer, 
ETC. —  Pctitiouois  wero  indicted  bj'  the  gi'aud  jury  of  the  criminal  court 
of  Cook  county  for  the  crime  of  nuirder,  and  petitioners  alleged  inter 
alia  that  they  were  duly  appointed  and  qualified  deputj'-niarshtils  of  the 
United  States,  and  assigned  to  duty  at  an  election  to  choose  a  represent- 
ative in  congress  of  the  United  States ;  that  as  sucli  officers  it  was  theii' 
dutj'  to  keep  thy  peace  and  in-eser%-e  order  at  the  polling  place;  that  a 
disturbance  occurred  at  said  election  between  one  Smith,  a  deputy-mar- 
shal of  the  United  States,  and  a  lai'gc  number  of  oth(>r  percons  incited 
thereto  by  special  constables  of  Cook  county ;  that  in  order  to  cpiell  said 
disturbance  petitioners  took  said  Smith  into  custody  and  were  proceed- 
ing with  him  to  the  office  of  the  United  States  commissioner  to  make 
complaint  against  him  for  distui'bing  the  peace,  when  assaulted  and  fired 
ui)on  by  a  large  number  of  armed  men,  among  whom  was  the  deceased, 
who  threatened  petitioners  and  said  Smith  unless  petitioners  turned 
over  said  Smith  to  tlie  state  authoi-ities ;  that,  refusing  to  comply  with 
this  dcTuand,  they  were  fired  upon,  and  some  one  of  the  attacking  party 
killed  deceased.  The  petitioners  prayed  that  a  writ  of  Judtcas  corpus 
cum  causa  issue,  directed  to  the  criminal  court  of  Cook  county,  requir- 
ing that  c()urt  to  stay  .all  further  ])roceedings  against  petitioners,  and 
thai,  the  suit  be  renioved  under  the  iirovisions  of  section  013  of  the 
Revised  Statutes  of  the  United  St  ;tes.  Held,  that  the  mere  holding  of 
a  commission  .as  deputy-marslials  of  the  United  States,  under  the  cir- 
cumstances set  forth  in  the  jietition,  did  not  withdraw  the  case  from  the 
Jurisdicti:)!!  of  the  state  courts;  that  there  is  no  federal  statute  making 
a  disturbance  at  the  polls  an  offense  against  the  United  States,  .ind  an 
Smith  wiis  violating  a  state  law,  petitioners  had  a  right  to  arrest  him 
and  turn  him  over  to  the  state  authorities;  that  the  fact  that  he  was  a 
deputy-ma "shal  of  the  United  States  entitled  him  to  no  more  considera- 
tion or  protection  tlhin  others  eng.aged  in  the  same  disturbance.  Held, 
also,  tliat  the  case  differed  from  one  in  which  depnty-Tuarshals  of  the 
United  States,  in  repelling  force  by  force  in  defense  of  themselves  or 
their  prisoners,  shot  and  killed  an  assailant. 

Petition  for  rcnioval  of  case  to  circuit  court. 

lilehard  S.  T"f/u'/l,  United  States  district  attorney,  and  C. 
II.  Ddiceti,  assistant  United  States  district  attorney,  for  peti- 
tioners. 

Gkksiiam,  J.  The  sworn  petition  of  John  Flotclier  and  Julius 
Yattaw  states  that  on  the  2Uth  day  of  November,  1SS4,  they 
aEd_ James  Smith  were  jointly  indicted  in  the  criminal  court  of 


158 


A3HERICAN  CRIMINAL  REPORTS. 


Cook  county,  Illinois,  for  the  crime  of  murder  upon  one  "Will- 
iam Curnan,  by  which  a  criminal  prosecution  Avas  begun  in 
the  name  ami  by  the  authority  of  the  people  of  the  sl;ii  <»f 
Illinois,  against  the  petitioners,  which  is  now  pendin<4  lu  iJio 
state  court,  and  upon  which  they  are  confined  in  the  county 
jail  of  Cook  country  awaiting  trial.  After  further  stating  that 
at  the  time  the  alleged  killing  and  murder  occurred,  namely, 
on  the  4th  day  of  I^^ovember,  188-i,  the  petitioners  and  James 
Smith,  their  co-defendant,  were  duly  appointed  and  qualified 
deputy-marelials  of  the  United  States,  and  assigned  to  duty  at 
the  third  clcctiou  district  of  the  second  ward  of  the  city  of  Clu- 
cago,  at  an  election  to  choose  a  representative  in  the  congress 
of  the  United  States,  the  petition  proceeds : 

"  And  that  each  of  your  petitioners  Avas  then  acting  under 
color  of  said  oflice,  and  in  pursuance  of  said  law ;  and  that  the 
act,  for  the  alleged  commission  of  which  said  arrest  was  made 
and  said  subsequent  proceedings  against  your  petitioners  were 
had,  was  done,  if  done  at  all,  in  their  own  necessary  self-defense, 
and  while  engaged  in  the  discharge  of  their  duties  as  deputy- 
marshals  as  aforesaid ;  .  ,  .  that,  as  such  officers,  it  was  their 
duty  to  keep  the  peace  and  preserve  order  at  the  polling  place 
aforesaid;  that,  on  the  said  itli  day  of  November,  iit  said  poll- 
ing place,  a  disturl)ance  and  breach  of  the  peace  occurred 
between  said  James  Smith,  then  and  there  a  deputy  of  the 
marshal  of  the  United  Stiites  for  said  northern  district,  and  a 
large  number  of  persons  incited  thereto  by  special  constables 
of  said  Cook  county,  Avhose  names  are,  to  your  petitioners,  un- 
known; that  said  constables  and  said  large  numl)er  of  ])ersons 
were  then  threatening  said  Smith  with  personal  violence  and 
injury;  that  your  petitioners,  as  such  olficers  aforesaid,  in  order 
to  quell  said  disturbance,  and  to  protect  said  Smith,  and  to 
preserve  order  at  the  polling  place  aforesaid,  then  and  there 
arrested  said  Smith  and  took  him  into  custody;  tliat  Avliilo 
your  petitioners  so  had  said  Smith  in  custody,  and  were,  Avith 
liim,  peacefully  and  lawfully  proceeding  to  the  ollicc  of  i'liili]) 
A.  Iloyne,  Esq.,  commissioner  of  this  court,  therv)  to  make 
complaint  against  him,  said  Smith,  for  disturbing  the  i)cace  at 
•said  })olling  place,  they  Avere  assaulted  and  fii'cd  upon  with 
pistols  and  other  deadly  AA^eapons  in  tiie  hands  of  a  largo  body 
of  armed  men,  among  whom  Avas  said  Curnan,  greatly  out- 


numl)erin 
and  said  1 
Harrison- 
petit  ionei 
and  niailo 
nan;  but 
known,  tl 
said  Ciirn 
mciitionei 
prosccutic 
done,  if  (.1 
aforesaid, 
lawfully 
Statutes  t 
The  in-i 
issue,  dire 
that  cour 
tioncrs;  t 
anil  deter 
the  Unite 
his  custo; 
indictmen 
The  moti 
So  nuicli  ( 
any  civil  i 
any  ollice 
of  any  ac 
jcct  of  th 
or  author! 
any  of  tli 
at  any  tii 
moved  foi 
district  w 
of  such  d 
uro  of  the 
on  the  do 
cause  oriti 
prosecuti( 
ing  by  wli 
to  issue  I 


STATE  OF  ILLINOIS  v.  FLETCHER. 


159 


numbering  your  petitioners,  who  threatened  your  pot  i  Honors 
and  said  Smitli,  unless  your  petitioners  took  said  ISmitli  to  tlie 
lIiuTison-strcct  pohee  station,  in  the  city  of  Cliicago;  and  your 
petitioners  aver  that  they  iired  no  shot  at  their  said  assailants, 
and  nuido  no  attack  upon  them  whatever,  or  against  said  Cur- 
nan  ;  but  they  aver  and  state  that  some  poj'sun  to  them  un- 
known, then  attacking  your  petitioners,  did  shoot  and  kill  the 
said  Ciirnan,  as  they  believe,  which  is  the  murder  and  killing 
mentioned  in  said  indictment ;  and  your  petitioners  aver  the  said 
prosecution  was  begun  and  commenced  against  them  for  acts 
done,  if  done  at  all,  by  your  petitioners  as  deputy -marshals  as 
aforesaid,  and  while  in  the  performance  of  their  duty  while 
lawfully  acting  under  the  provisions  of  title  20  of  the  llevised 
Statutes  of  the  United  States  —  the  'Elective  Franchise.'" 

Tlie  prayer  is  that  a  writ  of  haheas  corpus  cum  causa  may 
issue,  directed  to  the  criminal  court  of  Cook  county,  requiring 
that  court  to  stay  all  further  proceeding  against  the  ])eti- 
tioners ;  that  the  suit  bo  removed  into  this  court  for  hearing 
and  determination ;  and  that  this  court  direct  the  marsiial  of 
the  United  States  for  this  district  to  take  the  petitioners  into 
his  custody,  and  hold  them  for  further  orders.  A  copy  of  the 
indicUuout  is  attached  to  the  petition,  and  made  a  })ai't  of  it. 
The  motion  is  based  upon  section  Gi?>  of  the  Ecvised  Statutes. 
So  nuich  of  this  section  as  need  be  noticed  provides  that  when 
any  civil  suit  or  criminal  prosecution  is  commenced  against 
any  ollicer  of  the  United  States,  or  other  person,  on  Jiccount 
of  any  act  done  under  the  provisions  of  the  act  upon  the  sub- 
ject of  the  elective  franchise,  or  on  account  of  any  right,  title 
or  authority  claimed  by  such  officer,  or  other  person,  under 
any  of  tlie  ])ro visions  of  that  act,  such  suit  or  prosecution  may, 
at  any  time  before  the  trial  or  final  hearing  thereof,  be  re- 
moved for  trial  into  the  circuit  court  next  to  be  holden  in  the 
district  where  the  same  is  pending,  upon  the  veriiied  ])etition 
of  such  defendant  to  such  circuit  court,  setting  forth  the  nat- 
ure of  the  suit  or  prosecution.  The  case  is  thercu))on  ontcrctl 
on  the  docket  of  the  circuit  court,  and  proceeded  with  as  a 
cause  originally  commenced  in.  that  court.  When  the  suit  or 
prosecution  is  commenced  by  capias,  or  any  form  of  proceed- 
ing by  which  a  jjcrsonal  arrest  is  ordered,  the  clerk  is  requested 
to  issue  a  writ  of  habeas  corpus  cum  causa,  a  duplicate  of 

Th'  .Vi^-^W  OF 


iist"i-Ai.«Qcim 


100 


AMERICAN  CRIJIINAL  REPORTS. 


Avliich  is  delivci'od  to  the  clerk  of  the  state  court,  or  left  at  the 
office  by  the  marslial  of  the  district  or  his  deputy,  or  by  some 
person  didy  authorized  tliereto ;  and  thereupon  the  state  couvt 
is  obliged  to  stay  all  further  proceedings  in  the  case;  and  tlic 
suit  or  prosecution,  on  the  delivery  of  such  process,  or  leaving 
the  same  as  aforesaid,  is  lield  to  be  removed  to  the  circuit 
court,  and  any  further  proceedings,  trial  or  Judgment  therein 
in  the  state  court  become  void.  If  the  defendant  in  tlie  suit 
or  prosecution  be  in  actual  custody  on  mesne  process  tlierein, 
it  is  the  duty  of  the  marshal,  b}'  virtue  of  the  writ  of  haleas 
corpus  cum  causa,  to  take  the  bod\'  of  the  defendant  into  his 
custody,  to  be  dealt  -with  in  the  case  according  to  law  and  the 
order  of  the  circuit  court,  or,  if  in  vacation,  hy  any  judge 
thereof. 

If  the  petitioners  have  been  indicted  in  the  state  court  for 
an  act  done  by  them  Avhile  fairly  in  the  lino  of  tljcir  duty  as 
doputy-nuu'shals  of  the  United  States,  at  one  of  the  polHng 
places  in  the  city  of  Chicago  at  the  late  election,  at  wliicli  a 
representative  in  congress  was  voted  for,  aiul  tliat  fact  ap- 
pears in  tlic  petition,  the  case  may  bo  removed  to  this  court 
for  hearing.  IC  the  petition  simply  averred  that  the  defend- 
ants stood  indicted  in  the  state  court  for  an  act  done  by  tliem 
as  deputy-marshals,  or  undei*  color  of  their  oilice,  or  the  law 
autliorizing  their  appnintniont  and  defining  tlieir  po\v(>rs  and 
duties,  without  descril)ing  the  act  or  circumstances  under  wliich 
it  was  committed,  it  would,  perhaps,  be  the  right  and  duty  of 
this  court  to  assert  jurisdiction  of  the  case;  at  least,  until  it 
should  appear  that  the  claim  was  iinfounded.  2\>nnessee  v. 
Davis,  100  U.  S.,  257. 

It  is  charged  in  the  indictment  that  the  petitioners  shot  and 
murdered  William  Curnan  on  the  4th  day  of  Xovemlx'i',  1SS4, 
in  the  county  of  Cook  and  state  of  Illinois,  and  the  petition 
distinctly  asserts  that  "neither  of  them  fired  any  shot  or  did 
any  act  by  reason  of  which  the  said  Curnan  came  to  his  deatli, 
as  set  forth  in  the  indictment."  If  they  neither  did  tlie  shoot- 
ing nor  in  any  way  contributed  to  Curnan's  dcatli,  it  follows 
that  they  have  not  been  indicted  for  any  act  or  acts  done  by 
them  as  de|)uty-marshals  of  the  United  States,  and  this  court 
has  no  liglit  to  mterfero  with  the  jurisdiction  of  the  state 
court.    It  iS  truo,  the  petition  contains  an  averment  that  tho 


indictmen 
them,  if  t 
while  in  t 
the  killing 
short  of  i 
they  stanc 
(leputy-mi 
autliority 
case  from 
liolding  o 
States  at  1 
offense  an 
ground  fc 
case.  Th( 
ant  in  the 
and  a  nun 
stahlcs  of 
breach  of 
l)y  the  spc 
violence; 
said  Smith 
the  petitio 
iug  with  h 
tlie  United 
(hstuvlting 
upon  by  a 
deceased,  ' 
ilarrison-s 
tlu'eatened 
and  that,  r 
u{)t)u,  and 
Curnan. 
pears  for 
duty  as  a  ( 
of  the  ])ea 
against  tli 
might  hav 
the  Unite( 
Instijad  of 
engaged  ii; 
Vol 


STATE  OF  ILLINOIS  v.  FLETCHER. 


161 


indictment  was  found  against  the  petitioners  for  acts  done  by 
them,  if  done  at  all,  as  deputy-marshals  of  the  United  States, 
while  in  the  performance  of  their  duties  as  such.  They  did 
the  killing  or  contributed  to  it,  or  they  did  not ;  and  nothing 
short  of  a  positive  averment  that  they  did  the  act  for  which 
tlicy  stand  indicted,  and  did  it  in  the  line  of  their  duty  as 
(leputy-nuirshals  of  the  United  States,  or  under  color  of  their 
aiitliority  as  such  officers,  will  entitle  them  to  a  removal  of  the 
case  from  the  state  court  to  this  court  for  trial.  The  mere 
liolding  of  a  commission  as  a  deputy-marshal  of  the  United 
States  at  the  time  a  party  is  indicted  for  murder,  or  any  other 
oircnse  against  the  laws  of  a  state,  is  not  of  itself  sufficient 
ground  for  depriving  the  state  court  of  jurisdiction  of  the 
case.  The  petitioners  state  that  James  Smith,  their  co-defend- 
ant in  tlie  iiulictment,  and  also  a  deputy  .United  States  marshal, 
and  a  number  of  other  persons  incited  thereto  by  special  con- 
stahlcs  of  Cook  county,  were  engaged  in  a  disturbance  and  a 
hroach  of  the  peace  at  the  polls;  that  Smith  was  threatened 
by  the  special  constables  and  such  other  persons  with  personal 
violonco;  that  "in  order  to  (jucll  said  disturbance  and  protect 
said  Smith,  and  to  ])reserve  order  at  the  polling  place,"  they, 
the  petitioners,  took  Smith  into  custody;  that  while  proceed- 
ing with  him  to  the  office  of  Philip  A.  lloyne,  a  commissioner  of 
the  United  States,  there  to  make  complaint  against  him  "for 
(listini)ing  the  peace  at  said  polling  place,"  they  were  fired 
upon  by  a  large  body  of  arn^ed  men,  including  Curnan,  the 
deceased,  who  demanded  that  Smith  should  be  taken  to  the 
Ilarrison-street  police  station,  in  the  city  of  Chicago,  and 
threatened  both  them  and  Smith  unless  he  was  taken  there; 
and  that,  refusing  to  comjily  with  this  demand,  they  were  fired 
upon,  and  some  one  of  the  attacking  party  shot  and  killed 
Curnan.  It  is  not  claimed  by  the  district  attorney,  who  ap- 
pears for  tlie  petitioners,  that  Smith  was  in  the  line  of  his 
duty  as  a  deputy-marshal  when  he  was  engaged  in  the  breach 
of  the  peace  at  the  polls,  or  that  he  had  committed  an  offense 
against  the  United  States  for  which  Commissioner  lloyne 
might  have  held  him  for  trial,  or  for  which  any  court  of 
the  United  States  had  jurisdiction  to  try  and  punish  him. 
Instt;ad  of  doing  his  duty  as  a  deputj'-marsiial,  Smith  Avas 
engaged  in  a  disturbance  and  breach  of  the  peace  ,it  the  polls. 
Vol.  IV  — 11 


AMERICAN  CRIMINAL  REPORTS. 


The  petitioners  liad  a  right  to  arrest  him  for  this  offense,  and. 
i:i  a  reasonable  time,  turn  liim  over  to  the  proper  state  autlior- 
ities.  He  was  simply  a  lawbreakei',  and  the  fact  that  he  was 
a  deputy-marslial  of  the  Uii'ted  States  entitled  him  to  no  more 
consideration  or  protectior  than  others  engaged  in  the  same 
disturbance  and  breach  of  the  peace.  The  district  attorney 
admits  that  there  is  no  federal  statute  making  a  disturbance  at 
the  polls  amounting  to  a  breach  of  the  j)eace  an  offense 
jigainst  the  Ignited  States.  This  is  not  a  case  in  which  doputy- 
marslials  of  the  United  States,  in  repelling  force  by  force  in 
defense  of  themselves  or  their  pi'isoner,  sliot  and  killed  an  as- 
sailant. Smith  had  violated  the  laws  of  the  state,  and  the 
petitioners  refused  to  turn  him  over  to  the  state  authorities. 
They  held  him,  it  miiy  be  fairl}'  inferred,  to  protect  him  ho- 
eauso  he  was  a  deputy  United  States  marshal,  and  to  take  him 
before  Connnissionerlloyne,  who  had  no  jurisdiction  to  hear  ;i 
complaint  against  him  or  to  detain  him. 

The  order  prayed  for  is  denied,  and  the  petition  is  dismissed. 


State  v.   IlrrcniNsoK". 

(CO  Iowa,  478.) 

EiiBEZZLEMFTNT:   Emdciicc  —  Estoppel —  Limildiions. 

1.  Estopped  does  not  apply  to  criiIINAL  cases. —  Tln^  (Icfendant,  wlio 

had  been  a  comity  tr'-asuror  frf)m  liiOS  tolSTS,  was  indicted  for  cni- 
bczzlemont>  and  the  state  introduced  in  f  vidence  tlie  Ketllcment  shoct. 
which  was  made  at  the  coinnu'iiceincnt  of  the  dcfendnnt's  last  term  nf 
oftice,  witli  his  certificate  tliereon  lliat  it  was  a  tnu>  slateuu-iit  of  ca-sfi 
then  in  his.  hands  as  treasurer.  Wliereuiion  dt-fendailt  sought  to  sfiow 
that  the  shortage  coniphuned  of  in  tlio  indictment  occurred  during  lii- 
prior  terms  of  oflice,  wmI  more  than  three  years  htloiT  the  indi(  tnuri! 
wa-s  foimd,  and  that,  tl»ert>fore,  the  jirosecntion  was  barred  by  tlie  Ktal- 
Bte  of  Umitations,  which  testimony  the  court  refased.  Held,  ihi\\  Un 
defendant  should  have  been  allowed  to  show,  if  he  could.  Ibiit  mo  (IcImI- 
cation  took  place  within  throe  years  next  before  the  tindim;  of  the  i' 
dictment. 

2.  Same. —  A  defendant  in  a  crinn'nal  case  may  prove  the  actual  factji  in 

dispute,  notwithstanding  anj'  admissions  or  confessions  ho  may  have 
made  to  the  contrary.  Conclusive  i)resumptions  and  estojipels  have  no 
place  in  the  cruuiual  law  cstablishuig  the  body  of  the  (.'riijiu  charijeil. 


Appeal 

Tliibhat 

Smith . 

KoTHRO 

county  fo 
ing  in  Ja 
case  Avas 
embezzlin 
his  liands 
The  sta 
was  made 
of  office, 
was  a  tru( 
The  accoi 
the  office : 
upon  its  fi 
thereby  si 
up  this  sh 
scttlemeni 
the  last  si: 
Upon  this 
term  of  o 

S4n.soo. 

We  do 

the  trial  tl 
wli(>n  he  V 
to  showth 
more  thai 
tiiat,  there 
limitations 
d('tif(>  to  t 
1><7(5.  and 
small  amn 
thai  tiieci 
iiaiids  in 
deposit  an 
catcs  of  d( 
use  of  hy 
the  Jindini 


STATE  r.  HUTCHINSON. 


Appeal  from  Webster  District  Court. 

Tliibhat'd,  Clarh  S  Daidey,  for  appellant. 

Smith  McPherson,  attorney -general,  for  the  state. 

EoTiiRocK,  J.  I.  The  defendant  was  treasurer  of  Webster 
county  for  ten  years,  commencing  in  January,  18GS,  and  end- 
ing in  January,  1878.  In  April,  1S7S,  the  indictment  in  this 
case  was  returned  against  him,  in  which  he  was  charged  with 
embezzling  about  $48,000  of  the  public  money  which  came  into 
his  Iiands  as  such  treasurer, 

Tlie  state  introduced  in  evidence  the  settlement  sheet  which 
was  made  at  the  commencement  of  the  defendant's  last  term 
of  oilico,  in  January,  1ST<>,  ^vith  liis  certificate  thereon  that  it 
was  a  true  statement  of  casli  tlien  in  his  hands  as  treasurer. 
The  account  or  settlement  sheet  embraced  the  transactions  of 
the  office  for  the  six  months  next  preceding  the  settlement,  and 
upon  its  face  it  appenred  to  be  correct,  and  the  defendant  was 
thereby  shown  not  to  be  in  arrears.  The  state  then  followed 
up  this  showing  by  an  exhibit  of  the  subsequent  semi-annual 
settlement  sheets,  and  then  from  the  books  of  the  office  for 
the  last  six  months  of  the  last  term,  ending  in  January,  1878. 
Upon  this  l>asis  it  appenred  that,  at  some  time  during  the  last 
term  of  office,  the  defendant  became  short  in  his  cash  some 
$4r.,800. 

We  do  not  understand  that  the  defendant  contended  upon 
the  triiil  that  he  was  not  short  in  his  casli  and  largely  in  arrears 
wlicn  he  went  out  of  office  in  .January,  1S78.  I'ut  he  sought 
to  show  that  this  shortage  occurred  dni-ing  his  prior  terms,  and 
more  than  tlnx'e  years  before  the  indictment  was  found,  and 
that,  tlierel'ore.  the  prostvution  was  barred  by  the  statute  of 
limitations.  To  make  this  proof  the  det'endanl  olVered  evi- 
dence to  the  effiH't  that,  at  the  setth-tuent  made  in  January, 
1><T'>,  and  at  those  previously  and  subsecpiently  made,  but  a 
sm;ill  amount  of  cash  was  prodiiet^d  at  each  scttlenicnt.  and 
thai  the  cash  ktlaiu'e,  which  should  ha\e  been  actually  in  his* 
liaii(l>  in  money,  was  largely  m«de  up  of  bank  certificates  of 
deposit  and  other  vou«  hers,  lie  offered  to  sliow  that  certifi- 
cates of  (lc|H)sit  and  other  evidfiices  ol'  debt  had  been  made 
iis((  of  l»v  him  in  liis  setllenu-ni:  more  than  three  years  prior  to 
tlic  iindiug  of  the  iutUetuient.     lie  further  oll'ered  to  prove 


164 


AMERICAN  CRimNAL  REPORTS. 


that  he  had  no  funds  in  the  hauls  vjhich  issued  the  certifeat's. 
In  other  words,  he  offered  to  show  and  prove  tluit  he  inudo 
his  settlement  Arith  the  hoard  of  supervisors  by  the  use  of 
worthless  and  spurious  certificates  of  deposit  instead  of  cusJi. 
and  that  whatever  money  was  converted  to  his  own  use,  was 
so  converted  more  than  three  years  before  the  indictment  was 
presented.  This  evidence  was  objected  to  by  the  state  and  tlio 
objection  was  sustained.  This  rulinj^,  as  we  infer  from  the  ob- 
jections made  to  the  evidence,  was  based  upon  the  idea  that  tlK> 
defendant  was  criminsilly  bound  by  the  settlement  sheets,  itiid 
by  his  cei'tificates  that  he  had  the  cash  actually  on  hand  at  tlic^ 
time  the  several  settlements  were  made. 

In  Boone  Co.  v.  Jones.,  54  Iowa,  099,  it  was  held  that  a  county 
treasurer  and  tlie  sureties  on  his  bonds  Avere  bound  by  a  settle- 
ment and  accounting  made  according  to  laAV,  and  where  at 
such  settlement,  for  aught  that  appeared,  the  cash  which  should 
have  been  on  hand  Avas  produced  by  the  treasurer,  such  settle- 
ment could  not  be  impeached  by  showing  that  the  defalcation 
complained  of  previously  existed.  In  other  words,  it  was  held 
that  Avhere  a  treasurer  produces  the  funds  Avhich  should  be  in 
his  hands  at  a  settlement,  the  settlement  is  conclusive,  and  (he 
treasurer  and  his  sureties  cannot  be  permitted  to  proA'c  that  tlio 
treasurer  deceived  the  board  of  supervisors  in  such  settlenuMit 
by  producing  money  not  belonging  to  the  office  nor  to  tlir 
treasurer.  That  Avas  a  civil  action  to  recover  upon  the  bond 
of  the  treasurer,  for  an  alleged  defalcation.  In  Wehster  Co.  r. 
Ilutchinson,  9  N.  AV.  Fvep.,  901,  and  12  N.  W.  Rep.,  534,  whioli 
Avas  a  civil  action  to  recoA'er  on  the  defendant's  bond  for  tlic 
same  alleged  defalcation  for  Avhich  the  defendant  Avas  indicted 
in  this  case,  it  appeared  tliat  the  settlement  Avas  made  Avith  tli(> 
treasurer  Avithout  producing  the  money  Avhich  shoidd  have  bcni 
on  hand,  but  by  producing  certificates  of  deposits  from  baid<s, 
and  other  evidences  of  indebtedness.  It  was  held  that  tliis 
constituted  no  settlement,  because  the  laAV  required  tlie  cash  lo 
be  produced.  It  was  further  held  that  as  the  board  of  sujmt- 
visors  Avere  not  deceived  by  the  production  of  the  money,  it 
was  allowable  for  the  sureties  upon  the  defendant's  bond  to 
shoAV  that  the  defalcation  existed,  in  fact,  prior  to  the  settle- 
ment in  question.  It  Avas  also  held  in  that  case  that  the  <le- 
fendant  was  concluded  by  the  settlement,  upon  the  very  obvious 


STATE  V.  HUTCHINSON. 


165 


ground  that  he  could  not  be  allowed  to  take  advantage  of  his 
own  Avrong  and  fraud  to  the  injury  of  the  public,  even  though 
the  board  of  supervisors  knew  that  the  settlement  was  not 
made  in  compliance  with  the  law. 

Wc  are  now  required  to  determine  whether  or  not  the  above 
rules,  which  are  applicable  to  civil  liability  upon  a  treasurer's 
bond,  should  be  held  to  obtain  in  a  criminal  prosecution  for 
embezzlement.  "We  are  clearly  of  the  opinion  that  they 
should  not.  If  the  claim  of  the  defendant  be  true,  he  was 
guilty  of  embezzlement  as  early  as  1872.  lie  offered  to  prove 
that  from  that  time  forward  he  made  his  settlements,  not  with 
money,  but  largely  Avith  certilicatcs  of  deposit,  and  Avith  other 
])roniiscs  to  pay.  This  was  wholly  unauthorized  by  law.  Even 
if  the  defendant  had  actually  deposited  money  with  the  banks^ 
and  the  certilicatcs  rei)resented  the  deposits,  such  a  disposition 
of  the  funds  in  his  hands  was  unauthorized.  Lowvy  v.  Polh 
tb.,  51  Iowa,  50.  But  when  the  defendant  offered  to  prove 
that  he  had  no  deposits  in  the  banks,  he,  in  effect,  offered  to 
show  that  he  had  converted  the  money  Avhich  had  been  in  his 
hands  to  his  own  use.  At  least  this  would  have  been  tlie  log- 
ical inference,  in  the  absence  of  proof,  that  he  had  lost  it,  or 
that  it  had  been  stolen,  or  the  like.  The  fact  that  at  each  set- 
tlement he  failed  to  produce  the  money,  was  a  sullicient  failure 
to  account  for  the  funds  in  his  hands  to  constitute  the  crime  of 
embezzlement,  in  the  absence  of  exculpatory  proof. 

We  think  the  defendant  should  have  been  allowed  to  show, 
if  he  could,  that  no  defalcation  took  place  within  three  years 
next  before  the  finding  of  the  indictment.  AVe  know  of  no 
rule  that  estops  a  defendant  in  a  criminal  prosecution  from 
])roving  the  actual  fact  in  dispute,  notwithstanding  any  admis- 
sion or  'Confession  ho  may  have  made  to  the  contrary.  Con- 
clusive ,)resumptions  and  estoppels  have  no  place  in  the 
criminal  law  in  establishing  the  body  of  the  crime  charged. 
The  statement  and  certificate  showing  that  the  cash  was  actu- 
ally on  hand  and  produced  at  the  settlement  in  1870,  amounted 
to  no  more  than  an  implied  confession  that  the  defalcation 
took  place  after  that  time,  and  to  deny  to  the  defendant  the 
right  to  dispute  the  confession  thus  made  is,  in  our  opinion, 
fimdamentally  wrong. 

2.  There  are  other  questions  in  this  case  which  are  argued 


106 


AMERICAN  CRIMINAL  REPORTS. 


by  counsel.  Tlioy  pertain  to  the  manner  of  obtaining  the  jury 
and  the  impaneling  the  jury  in  the  alleged  absence  of  any 
counsel  for  the  defendant,  and  other  objections  which  we  need 
not  discuss,  inasmuch  as  the  alleged  errors  will  not  likely  arise 
ui)on  a  re-trial.  In  view  of  a  new  trial,  however,  it  may  not  ho 
improper  to  say  that,  in  our  opinion,  the  demand  made  by  tli;; 
county  auditor  (if  a  demand  was  necessary)  for  the  payment 
of  the  alleged  shortage  was  a  sufficient  demand,  in  view  of 
the  authority  given  to  him  by  the  board  of  supervisors. 

For  the  error  first  above  discussed  the  judgment  of  the  dis- 
trict court  will  be  reversed.  . 

NoTK. — A  sentence  of  the  court  ought  not  to  be  modifled  by  any  arrange- 
ment between  defendant  or  his  counsel  and  the  court,  looking  to  hi.s 
abatidonnicnt  of  the  right  to  move  for  a  new  trial,  and  if  so  modified  the 
defendant  will  not  be  estopped  from  his  right  to  move  therefor  during  the 
time  allowed  bylaw.    Smith  v.  The  State,  64  Ga.,  439. 

Tliere  is  no  legal  presumption,  for  the  purpose  of  a  criminal  prosecu- 
tion, tliat  bank-notes,  checks,  bills  of  exchange,  and  other  securities  for 
mono}',  are  worth  the  sums  wluch  they  represent,  or  any  sum.  Peojyle  v. 
Hall,  48  IMich.,  491. 


2. 


State  of  Louisiana  v.  Exnicios. 

(33  La.  Ann.,  233.) 

Embezzlement:  Officer  or  "  other  person"  —  Comititutional  law. 

Constitutional  law— Title  of  acts.— A  statute  is  not  unconstitu- 
tional as  a  whole,  under  the  constitution  of  1808,  because  all  its  objects 
are  not  expressed  in  its  title.  Those  parts  of  the  law  which  are  indi- 
cated by  the  title  must  stand,  while  only  those  not  so  indicated  will 
fall,  uidess  they  are  so  interwoven  with,  and  dependent  upon,  eacli 
other  that  they  cannot  be  sejjarated. 

Embezzlement  of  any  officeu  or  "other  person."— Act  No.  43  of 
1871,  providing  for  the  punishment  of  "any  officer  or  other  person, 
charged  with  the  collection,  receipt,  safe-keeping,  etc.,  of  public  money, 
who  shidl  convert  it  to  hia  own  use,"  etc. ,  clearly  covers  the  case  of  a 
clerk  of  the  administrator  of  finance  of  the  city  of  New  Orleans,  guilty 
of  such  an  act. 


Appeal  from  the  Criminal  District  Court,  Parish  of  Orleans. 
Luzenberg,  J. 


STATE  OF  LOUISIANA  r.  EXNICIOS, 


101 


William  L.  Thompson,  for  defendant  and  appellant. 
J.  C.  Fjjan,  attoiney-general,  for  the  state,  ai)pellee. 

The  opinion  of  the  court  was  delivered  by 

Fknnku,  J.  The  only  errors  assigned  in  this  case  appear 
from  a  motion  in  arrest  of  judgment,  made  in  behalf  of  do- 
fondant,  on  the  following  grounds,  viz, : 

F'lrd.  That  act  No.  42  of  1871  is  unconstitutional  because 
said  act  does  not  contain  in  its  title  the  object  of  said  act,  nor 
docs  its  title  mc>ntion  or  attach  any  responsibility  to  clerks 
wliose  duties  are  ministei'ial. 

Second.  That  defendant  was  not  an  officer  known  to  the 
law,  and  charged  by  law  with  the  collection  of  taxes. 

Third.  That  defendant  was  only  a  clerk  employed  by  the 
administrator  of  finance  of  the  city  of  Xew  Oi-leans,  and  that 
act  -12  a])plies  only  to  officers  charged  by  law  with  the  collec- 
tion of  taxes,  and  not  tlieir  clerks  or  subordinate  agents. 

Fourth.  That  the  administrator  of  iinance  was  the  sole 
lawful  agent  of  the  city  to  collect  and  receive  its  revenues, 
and  could  not  delegate  its  power  to  others,  and  thus  cause 
res])onsibility  under  the  law  to  attach  to  them. 

Act  No.  42  of  1871  was  ])asse(l  under  the  regime  of  the  con- 
stitution of  18G8,  which,  wliile  requii'ing  that  "every  law  shall 
express  its  object  or  objects  in  its  title,"  contains  no  inhibition 
against  the  inclusion  of  several  objects  in  the  same  law,  pro- 
vided they  bo  expressed  in  the  title. 

The  title  of  this  act,  under  the  broadest  division,  contains  at 
least  twelve  distinctly  expressed  and  ditferent  objects.  The 
act  itself  contains  no  less  than  one  hundred  and  three  sections, 
which  have  reference,  some  to  one,  some  to  another  of  the 
objects  expressed  in  the  title. 

It  is  settled,  beyond  dispute,  that  in  the  application  of  this 
constitutional  i)i'()vision,  those  parts  of  the  law  which  are  indi- 
cated by  the  title  must  stand,  while  only  those  not  so  indicated 
will  fall,  unless  they  are  so  interwoven  with,  and  dependent 
upon,  each  other,  that  they  cannot  be  separated.  Cooley, 
Const.  Lim.  (4th  ed.),  p.  181. 

It  may  well  be  doubted  whether  a  ])leading,  based  on  the 
broad  charge  that  such  an  act  as  this,  containing  a  multiplicity 
of  objects  in  its  title  and  of  provisions  in  its  body,  is  unconsti- 


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168 


AMERICAN  CRIMINAL  REPORTS. 


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'I 


tutional,  without  specification  of  any  particular  provision  in- 
tended to  be  assailed,  could  form  a  proper  basis  for  any  judicial 
inquiry  or  determination.  It  is  manifest,  at  a  glance,  that  tlio 
allegation  is  not  true  as  pleaded,  because  the  act  is  not  uncon- 
stitutional, though  some  particular  provision  thereof  may  bo. 

"Waiving  this  objection,  however,  in  this  case,  wo  find  from 
the  brief  of  counsel  that  his  objections  to  the  constitutionality 
of  the  act,  as  well  as  we  can  understand  them,  are  direct<.nl 
against  section  90  of  the  act,  and  are  twofold,  viz.: 

First.  That  the  object  expressed  in  the  title,  viz.:  "To 
punish  certain  crimes  and  misdemeanors,"  does  not  express  tho 
persons  or  class  of  persons  who  are  to  be  punished  therefor, 
and  is,  therefore,  insufficient  to  cover  the  designation  of  sucli 
offenders  in  the  body  of  the  act. 

The  objection  can  hardly  be  seriously  considered.  It  is  ob- 
vious that  "  crimes  and  misdemeanors  "  can  only  be  committed 
by  persons,  and  that  ])ersons  only  can  bo  punished  for  the  com- 
mission thei'eof.  Certain  persons,  or  persons  occupying  certain 
relations,  can  alone  commit  certain  crimes.  Only  persons  in- 
trusted with  the  money  of  another  can  commit  the  crime  of 
embezzlement. 

The  crime  defined  in  section  00  qf  the  act  imder  considera- 
tion is  the  embezzlement  of  public  funds,  and  it  can  only  bo 
committed  by  "officers  or  other  persons"  charged  in  some 
manner  with  the  collection  or  custody  of  such  funds  In  de- 
fining and  punishing  the  crime,  it  was  necessary  to  designate 
how  and  by  whom  the  crime  might  bo  committed,  and  such 
designation  is  aptly  covered  by  the  title. 

Second.  It  is  objected  that  in  a  certain  part  of  the  section 
provision  is  made  as  to  what  facts  shall  constitute  ^^ prima  facie 
evidence  "  of  the  crime ;  and  that  such  provision  is  not  covered 
by  the  title, 

There  is  no  occasion  to  pass  upon  this  constitutional  question 
in  the  present  case.  Even  if  this  provision  as  to  evidence  were 
held  to  bo  unconstitutional,  it  would  not  affect  the  validity  of 
the  remaining  portions  of  tho  section.  Nothing  in  the  record 
informs  us  that  this  rule  of  evidence  was  applied  in  tho  instant 
case.  Had  it  appeared  that  the  judge  had  charged  the  jury  that 
the  facts  stated  in  the  act  cor\^i\ixxiQ{\.  prima Jfacie  evidence  of 
guilt,  and  had  a  bill  of  exception  been  properly  taken  to  such 


STATE  f.  COSTIN. 


1C9 


charge,  wo  might  have  examined  this  question ;  but  no  founda- 
tion for  its  examination  is  laid  here. 

So  much  for  the  objections  to  the  constitutionality  of  the 
law. 

The  other  grounds  for  arrest  of  judgment  are  comprised 
in  the  proposition  that,  not  being  a  statutory  officer,  but  acting 
only  as  a  clerk  employed  by  such  an  ollicer,  he  is  not  covered 
by  the  provisions  of  the  act.  The  act  provides  that  "  if  any 
ollicer  or  other  person,  charged  with  the  collection,  receipt,  safe- 
keeping, etc.,  of  public  money,  or  any  part  thereof,  shall  fail  to 
])ay  over  the  same  according  to  law,  or  shall  convert  .o  his  own 
use,"  etc.  . 

It  is  impossible  to  explain  th  use  of  the  words  "or  other 
person,"  not  once  onh*,  but  several  times,  u];on  the  theory 
that  the  act  Avas  intended  to  apply  to  "  oiRocrs  "  only.  The 
law-maker  unquestionably  had  in  view  the  self-evident  fact 
tlii'.t  olHcers  charged  with  the  collection  of  taxes  could  not 
perform  their  functions  without  necessaril}'  delegating  some  of 
their  duties  to  subordinate  agents,  and  it  was  the  intention  to 
prevent  and  punish  the  embezzlement  of  public  funds  by  such 
employees  as  well  as  by  the  officers  themselves. 

The  case  of  defendant  is  covered  by  the  letter  and  clear 
meaning  of  the  law. 

Tiie  judgment  appealed  from  is,  therefore,  affirmed. 

Eehcaring  refused. 

Note. —  When  a  Bt.atuto  provides  that  "if  nuy  tavorn-kooiicr  or  otlier 
person  Bhall  sell"  intoxicating  liquors  on  Sunday,  he  sliall  he  Kuilty  of  a 
misdomcanor,  etc.,  held,  that  a  "  tavcrn-koeiier,"  withhi  the  meaning  of 
the  act,  is  a  person  whoso  business,  in  part  at  lea.st,  is  to  sell  su  ;h  litjuors, 
and  the  w/rds  "  or  other  i)crsons"  must  refer  to  a  similar  classj  of  persons, 
and  includes,  therefore,  only  those  engaged  in  the  business  of  eelllug  liquors. 
Jeiiscre  r.  The.  State,  CO  Wis.,  577. 


State  v.  Costin. 

(89N.  C,  511.) 

Embezzlement:  Muster  and  servant 

One  employed  to  sweep  out  store,  etc. — Where  goods  come  into  the 
iwssession  of  a  servant,  out  of  the  ordinary  course  of  his  employment, 
but  in  pursuance  of  special  directions  from  the  master  to  receive  them, 


170  AMERICAN  CBIMINAL  REPORTS. 

ajid  the  servant  embezzles  the  same,  he  is  indictable  under  the  statuto. 
Therefore,  where  one  employed  by  a  merchant  to  sweep  out  and  wait 
about  the  store,  but  not  as  clerk,  was  authorized  by  the  merchant  to 
take  a  lot  of  shoes  and  sell  them  during  his  visit  to  a  neighboring  town, 
which  he  did,  and  converted  the  money  to  his  own  use,  held,  that  ho 
was  a  servant  within  the  meaning  of  the  embezzlement  act,  and  received 
the  goods  by  virtue  of  his  employment. 

Attorney-General,  for  the  state. 
No  counsel  for  the  defendant. 

Meekimon,  J.  In  this  case  the  defendant  is  indicted  for  em- 
bezzlement under  Eat.  Rev.,  ch.  32,  §  136. 

On  the  trial  ho  prayed  the  court  to  give  the  jury  this  in- 
struction :  "  That  if  the  defendant  was  employed  only  for  the 
purpose  of  sweeping-  out  the  store  and  waiting  about  the  store 
of  E.  G.  Gause  ife  Co.,  and  during  such  employment  lie  was 
allowed  to  take  the  shoes  to  Point  Caswell  for  the  purpose  of 
selling  them  at  lifty  cents  per  pair,  and  he  sold  them  at  twenty- 
five  cents  per  pair,  he  could  not  be  convicted,  because  he  Avas 
not  a  servaiit  in  contemplation  of  the  statute  at  the  time  of 
the  sale,  and  because  he  sold  for  a  less  price  than  he  was  author- 
ized to  do." 

The  court  declined  to  give  the  jury  such  instruction,  and  the 
defendant  excepted. 

The  exce])tion  cannot  be  sustained.  In  our  judgment,  the 
defendant  was  a  servant  within  the  meaning  of  the  statute, 
and  what  he  did  constituted  the  offense  of  embezzlement 
under  it. 

The  manifest  purpose  of  the  statute  is  to  protect  individuals 
and  partnerships  against  frauds  upon  them  in  respect  to  money, 
goods  and  chattels,  and  the  several  species  of  credit  mentioned 
in  it,  on  the  part  of  their  agents,  clerks  and  servants;  and  cor- 
porations in  like  manner,  against  their  olHcei's,  agents,  clei'ks 
and  servants;  and  other  persons  and  corporations  in  like  man- 
ner, when  money,  goods  and  cliattels,  and  such  other  things, 
shall  come  into  their  possession,  or  under  their  care,  by  virtue 
of  such  olHco  or  such  other  employment.  It  is  intended  by  it 
to  sustain,  protect  and  preserve  the  integrity  of  an  essential 
and  important  confidential  relation,  that  is  almost  universal  in 
the  business  ramifications  of  life.  It  is  broad  and  comprehen- 
sive in  its  purpose,  and  it  is  scarcely  less  so  in  its  terms,  as 


STATE  V.  COSTIN. 


171 


we  shall  see.  And  it  must  be  construed  in  this  broad  view  of 
the  purpose  of  the  legislature  in  enacting  it. 

Trust  and  confidence  are  raised  by  the  relation  specified  in 
the  statute,  and  a  bi*each  of  this  trust  and  confidence  is  of  the 
essence  of  the  offense  denounced.  In  their  absence,  there  can 
be  no  offense.  Whenever  the  oflficer,  agent,  clerk  or  servant, 
by  virtue  of  such  relation,  directly  or  indirectly,  in  the  regu- 
lar course  of  his  business,  or  ^o  hac  vlee^  a  special  service  is 
assigned  him  and  he  accepts  the  same,  and  money,  goods  and 
chattels,  or  any  of  the  credits  specifi-ed  in  the  statute,  shall 
come  into  his  possession,  or  under  his  care,  and  ho  commits  a 
fraudulent  breach  of  the  trust  and  confidence  so  subsisting, 
the  offense  is  complete.  The  language  of  the  statute  in  respect 
to  the  possession  of  the  money,  goods  and  chattels  and  credits 
named  is,  "  which  shall  have  come  into  his  possession  or  under 
his  care  hj  virtue  of  such  office  or  employment."  The  posses- 
sion and  care  are  not  confined  to  such  as  come  in  the  ordinary 
course  of  business,  but  as  well  such  as  come  hy  virtue  of  the 
relation.  The  words  "  hy  virtue "  are  very  broad,  and  serve 
well  to  eft'ectuato  the  object  for  which  they  were  employed. 
Hence,  it  has  been  held,  in  construing  a  statute  similar  to 
the  one  under  cor  -jidoration,  that  where  the  thing  embezzled 
came  into  the  possession  of  the  servant,  out  of  the  ordinary 
course  of  employment,  in  pursuance  of  a  special  direction  from 
the  master  to  receive  it,  the  act  came  within  the  meaning  of 
the  statute.  Jiex  v.  Smithy  Euss.  &  K.,  516 ;  People  v.  Dalton, 
15  Wend.,  581 ;  Rex  v.  Hughes,  1  Moody,  370. 

The  relation  of  employer  and  agent  or  cleVlc,  or  master  and 
servant,  does  not  depend  on  the  length  of  time  it  shall  con- 
tinue, if  it  is  establislied  at  all ;  if  for  but  one  occasion  or  trans- 
action, that  will  be  sufficient.  There  are  no  words  of  limitation 
in  this  res[)ect  in  the  statute.  Rex  v.  Hughes,  supra;  Rex  v. 
Spencer,  Euss.  &  E.,  299;  Whart.  C.  L.,  §  1905  et  seq.;  2  Eussell, 
178;  2  Bish.  C.  L,,  §  359  et  seq. 

In  the  case  before  us,  it  appears  that  the  defendant  "  had 
been  in  the  employment  of  the  firm  of  E.  G.  Gauso  tfe  Co. 
about  six  weeks,  and  that  he  was  em])loyed  for  the  purpose  of 
sweeping  the  store,  and  waiting  ahout  the  store,  but  not  as  clerk. 

Now,  to  xiHiit  ahout  the  store  implies  that  ho  who  is  to  so  wait 
is  ready  to  do  and  will  do  such  service,  and  in  variety,  as  his 


172 


AMERICAN  CRIMINAL  REPORTS. 


^ 


employer  may  command  him  to  do,  generally  or  specially,  in 
connection  with  the  business  of  the  store.  lie  is  not  regularly 
a  sal(!sman,  but  very  considerable  trust  must  be  reposed  in  him. 
He  is  essential  about  such  a  business,  and,  in  many  instances, 
indispensable.  He  must  come  in  contact  with  goods  of  greater 
or  less  value  each  day  of  his  service ;  especially  his  duties  are 
varied.  He  is  to  sweep  the  floor,  ma,ke  the  fires,  bring  water, 
put  packages  of  goods  in  order,  go  on  errands,  deliver  pack- 
ages of  goods  to  customers,  and  receive  the  money  for  them 
when  commanded  to  do  so.  He  is  to  be  in  and  around  the 
store,  and  a  man-of-all-work  in  that  connection.  lie  is  not 
regularly  a  salesman,  and  yet,  occasionally,  he  might  do  spe- 
cial service  of  that  character,  if  commanded.  His  place  is 
one  of  considerable  responsibility,  requiring  integrity  of  char- 
acter. His  employer  might  necessarily  repose  a  considerable 
degree  of  confidence  in  him.  That  he  waits  about  the  store,  a 
place  where  merchandise  is  set  up  in  greater  or  less  quantities 
to  be  sold,  makes  such  employment  the  more  important.  We 
think  this  not  an  unreasonable  sphere  of  duties  for  one  who 
"  waits  about  the  store." 

Such  employment  establishes  the  relation  of  master  and 
servant,  in  contemplation  of  tlie  statute.  It  would  be  uni'cason- 
able  to  suppose  that  it  was  not  intended  to  embrace  and  -  'o- 
tect  such  a  business  relation.  It  is  a  common  one,  an  esscn.  d 
one,  and  one  of  importance.  There  are  small,  insignificant 
stores,  and  no  great  importance  attaches  to  the  servants  about 
them,  and  there  are  great  ones  too ;  but  the  statute  embraces 
and  protects  the  proprietore  of  all  against  the  frauds  of  fuitli- 
less  servants. 

The  defendant  was  the  servant  of  his  employers  in  the  sense 
of  the  statute,  imd  if  he  got  possession  of  their  money  by 
virtue  of  this  relation  to  them,  then  he  would  be  guilty. 

We  think,  also,  that  apart  from  the  defendant's  relation  to 
his  employers,  as  servant  waiting  about  the  store,  the  same  re- 
lation was  established  as  to  the  transaction  developed  by  the 
evidence  as  to  the  shoes.  He  agreed  with  his  employers  to 
take  the  shoes  to  Point  Caswell,  sell  them  for  fifty  cents  a  pair, 
and  deliver  the  money  he  might  get  for  them  to  his  employers. 
If  he  did  not  accept  the  service  as  to  the  shoes  by  virtue  of 
being  servant  about  the  store,  he  was  entitled  to  compensation 


STATE  V.  COSTIN.  173 

specially  for  i5olling  them,  and  the  relation  of  master  and  serv- 
ant as  to  the  shoes  was  raised  in  the  eye  of  the  law.  In  any 
view  of  the  case,  the  defendant  Avas  a  servant,  as  charged  in 
the  indictment.     I?e.v  v.  Iluf/hes,  sxipra;  2  Bish.  C.  L.,  §  340. 

The  defendant  insists  that  as  he  sold  the  shoes  for  a  less  sum 
than  fifty  cents  per  pair,  as  he  was  instructed  to  do,  but  sold 
them  for  twenty-five  cents  per  pair,  and  received  the  money 
for  them  at  that  price,  he  is  not  guilty  of  embezzlement. 

The  defendant  agreed  to  sell  the  shoes  as  instructed,  get  the 
money  for  them  and  deliver  it  to  his  employers.  He  sold  them 
for  a  less  price  than  he  was  authorized  to  do,  received  the 
money  for  them  for  his  employers,  and  fraudulently  disposed 
of  and  applied  it  to  his  own  use.  The  money  was  not  his;  he 
received  it  for  his  emploj-ors;  it  belonged  to  them,  at  all  events, 
until  they  disowned  the  sale,  and  this  tiiey  did  not  do. 

An  agent,  clerk  or  servant  cannot  thvis  throw  off  his  rela- 
tion to  his  employer  and  evade  the  statute.  It  does  not  lie  in 
the  mouth  of  the  defendant  to  say  that  he  did  not  sell  the  shoes 
for  his  employers,  and  the  money  was  not  theirs.  He  is  es- 
topped in  this  respect.  He  cannot  bo  allowed  thus  to  take  ad- 
vantage of  his  OAvn  wrong  and  evade  the  law.  Nnlhis  commo- 
dum  capcve  potest  de  hxjur'm  sua  lyropria  is  a  wholesome 
maxim  of  tljo  law,  and  wo  see  no  substantial  reason  why  it 
should  not  apply  in  a  case  like  this. 

The  statute  is  too  comprehensive,  too  practical  and  thorough 
in  its  spirit  and  purpose  to  allow  .so  subtle  a  distinction  as  that 
insisted  upon  to  impair,  indeed  destroy,  in  large  measure  its 
purpose  and  usefulness. 

If  sucli  a  shift  could  be  held  to  save  offenders  from  its 
penalties,  the  statute  would  become  almost  a  practical  nullity 
in  some  of  its  most  important  features.  Pishonest  agents, 
clerks  and  servants  would  constantly  contrive  to  repudiate  — 
throw  off — their  relation  to  their  emplo^'er  by  a  fraudulent 
departure  from  thei  r  instructions  in  respect  to  property  in  their 
possession  and  control,  and  thus  evade  the  law.  We  cannot 
think  that  the  leg  alature,  or  the  statute  in  its  terras  or  spirit, 
ever  contemplated  such  an  interpretation  of  its  meaning.  We  do 
not  think  it  reasonable,  and  we  cannot  so  construe  its  meaning. 
There  is  no  good  reason  that  we  can  conceive  of  why  the 
statute  should  receive  the  construction  contended  for  by  the 


174 


AMERICAN  CRIMINAL  REPORTS. 


defendant.  All  the  considerations  that  prompted  its  enactment 
lead  us  to  construe  it  as  we  have  done.  2  Bish.,  supra,  §§  351, 
367;  Ex  parte  IladUxj,  31  Cal.,  108. 

There  is  no  error,  and  the  judgment  must  be  affirmed,  and 
it  is  so  ordered.    Let  this  be  certified. 

Affirmed. 


Note. —  The  doctrine  of  the  common  law  was  that  fraiululcnt  breach  of 
trust  is  not  a  crime,  and  that  a  felonious  taking  is  an  essential  element  in 
larceny.  When  property  was  stolen,  the  person  who  lost  it  could  proceed 
against  the  supposed  thief,  either  "  by  word  of  felony,"  in  which  case  battle 
was  waged,  and  the  appellee  juight,  if  defeated,  be  hanged ;  or  the  owner  of 
the  goods,  "if  he  pleases,  may  bring  an  action  for  his  goods  as  lost ;  and  then 
he  shall  not  sue  judgment  of  felony  but  of  trespass  only."  In  describing  the 
form  of  an  appeal  of  larceny,  Britton  siiys  that  if  the  appellee  ''  pleads  that 
the  horse  was  his  ov.'n,  and  that  he  took  him  as  his  own ;  and  as  his  chattel 
lost  out  of  his  possession,  and  can  prove  it,  the  appeal  shall  be  changed  from 
felony  to  the  nature  of  trespass.  In  this  case  let  it  be  awarded  that  tlie 
defendant  lose  his  horse  forever."  It  Avas  only  on  a  conviction  on  appeal 
that  the  property  was  restored,  till  the  21  Hen.  8,  c.  11,  gave  the  owner  a 
suit  of  restitution  in  such  cases.  It  was  more  advantageous,  tlierefore,  for 
the  appellee  to  sue  for  trespass  than  "  by  words  of  felony,"  as,  in  the  latter 
case,  he  might  have  to  do  battle.  Upon  this  state  of  the  law  the  technical 
rule  was  established  that  there  can  be  no  larceny  without  a  trespass.  The 
reason  of  the  rule  practically  ceased  when  the  owner,  who  proceeded  against 
the  thief  for  the  felony,  was  no  longer  compelled  to  risk  his  life  in  trial 
by  combat,  but  the  rule  itself  remained.  As  the  inconvenient  and  ab- 
surd consequences  of  the  doctrine  revealed  themselves,  statutes  were  en- 
acted from  time  to  time  beginning  with  the  21  Henry  8,  c.  7,  which  made 
it  a  felony  in  any  servant,  not  being  an  apprentice  or  under  eighteen  years 
of  age,  to  embezzle  any  money  or  chattel  intrusted  to  him  by  his  master  to 
be  kept  for  his  use.  As  trade  and  commerce  flourished  and  extended,  new 
statutes  were  enacted  designed  to  punish  every  fraudulent  breach  of  trust. 
As  the  crime  of  embezzlement  is  purely  statutory,  the  statutes  numerous, 
and  their  provisions  diverse  from  one  another  in  many  respects,  the  value 
of  a  decision  of  a  foreign  state  will  depend  largely  upon  the  similarity  of 
the  statute  of  that  state  with  the  statute  of  the  state  where  it  is  quoted  as  a 
precedent.  We  will  doubtless  serve  the  profession  Ijest  by  presenting  a  few 
of  the  more  technical  points  decided.  It  may  be  added  that  there  is  no 
branch  of  the  cruninal  law  which  is  moi'e  intricate,  and  few  are  more  tech- 
nical, than  that  of  embezzlement  —  statutory  larceny. 

Clerk,  servant,  agent,  etc.— In  a  trial  for  embezzlement  of  money,  the 
evidence  showed  tliat  the  defendant  was  furnished  witli  sewing  macliinca, 
for  sale  in  towns,  requiring  him  to  account  for  them  to  Ids  principal  in 
money,  or  in  purchase-money  notes,  payable  to  his  principal;  but,  by  con- 
tract, outside  of  the  terms  of  his  agency,  he  was  authorized  to  sell  machines 
for  live-stock,  on  condition  that  he  would  sell  the  stock  and  account  to  his 
principal  for  the  money.    Dofeudont  tendered  his  principal  horses  received 


STATE  V.  COSTIN. 


iO 


in  triV'lo  for  macliincn,  which  he  refused  to  accept ;  whereupon  defendant 
sold  the  horses  and  retained  the  money.  Held,  that  the  money  was  not  the 
property  of  the  principal,  and  the  law  of  embezzlement  did  not  apply. 
Webb  V,  The  State,  8  Texas  Ct.  App.,  310. 

The  prisoner  had  worked  for  the  prosecutor,  sometimes  as  a  regular  laborer 
and  sometimes  as  a  roundsman ;  but,  at  the  time  in  question,  not  being  at 
all  in  the  prosecutor's  service,  he  was  sent  by  the  prosecutor  to  get  a  check 
cashed  at  a  banker's,  for  which  he  was  to  be  paid  sixpence.  He  got  the  cash 
and  mixde  off.  Held,  no  embezzlement,  as  the  prisoner  was  not  a  servant 
of  the  prosecutor  within  the  meaning  of  Stat.  7  &  8  Geo,  4,  c.  29,  s.  47. 
Rex  V.  Freeman,  5  Car.  &  P.,  534;  Rex  v.  Ncttleton,  1  Moody,  239. 

The  servant  or  employee  must  have  been  authorized  to  receive  the  prop- 
erty, or  the  nature,  scope  and  extent  of  the  employment  must  have  been 
sucli  as  to  wan-ant  the  receipt  of  the  property  embezzled.  Where  a  party 
waa  authorized  to  convey  prisoners  to  the  penitentiary,  and  received  certain 
BUiur.  of  money  belonging  to  the  prisoners,  which  he  embezzled,  it  was  held 
that  the  nature  of  his  employment  was  not  such  as  to  embrace  the  receipt 
of  such  money.    The  State  '^.  Johnson,  49  Iowa,  139. 

The  servant  of  a  firm  is  the  servant  of  the  individual  partners,  and,  if  he 
embezzle  the  private  property  of  one,  may  be  charged  as  the  servant  of  that 
indivit.ual.    Rex  v.  Leach,  3  Stark.,  70;  Rex  v.  White,  8  Car.  &  P.,  742. 

The  servant  of  a  copartnerehip  fraudulently  appropriated  money  which 
he  had  received  from  one  member  of  the  firm  under  the  direction  to  carry 
it  to  another  member ;  held,  not  liable  for  embezzlement.  Coin.  v.  Berry, 
99  Mass.,  428. 

Ownership,  partnership  jn'operty — Variance. — Where  the  property  was 
described  as  the  proi'crty  of  A.,  and  the  proof  showed  that  it  was  the  prop- 
erty of  A.  and  B.  as  copartners,  but  in  the  possession  of  A.  as  a  copartner,  it 
was  held  that  the  possession  of  the  propertj'  (goods  and  chattels)  by  one  of 
the  partners  does  not  authorize  the  goods  to  be  charged  as  the  goods  of  the 
individual  partner  who  thus  possesses  them,  because  he  does  not  stand  upon 
the  footing  of  a  bailee.  That  he  could  not  maintain  an  action  in  his  o\rn 
name  for  a  trespass  comm  itted  upon  or  injury  done  to  the  gootls  and  chattelsi 
as  bailee.  "  His  possession  is  the  jxissession  of  the  whole  of  the  partners, 
and  the  doctrine  of  special  propei-ty  cannot  arise,"  Hogg  v.  Tlie  State,  3 
Blackf.  (Ind.),  326. 

It  is  sufficient  if  one  only  of  several  joint  owners  is  named  in  the  indict- 
ment under  the  Indiana  statute,  but  when  the  stolen  property  is  alleged  to 
belong  to  two  pcreons,  proof  that  it  is  the  Beparato  property  of  one  of  them 
will  not  support  the  indictment.     Whider  v.  The  State,  25  Ind,,  234, 

Describing  the  propei'ty  as  the  property  of  A,,  B,  and  C,  proof  that  defend- 
ant stole  some  of  the  goods  of  each  o£  them  respectively,  in  which  they  had 
no  joint  interest,  does  not  correspond  witli  the  allogatiofn.  The  State  v. 
Ryan  and  Jones,  4  McCord  (S.  C),  16. 

An  indictment  alleging  the  goods  to  be  the  projicrty  of  A.,  not  sustained  by 
proof  that  they  are  owned  jointly  by  A.,  B.  and  C.  State  v.  Owens,  10  Rich. 
(S.  C),  109;  State  V.  McCoy,  14  N.  H.,  304. 

And  when  property  is  laid  in  the  name  of  the  firm  without  the  names  of 
all  the  partners  or  joint  owners,  the  inrlictment  will  be  bad,  in  the  absence 


r 


176 


AMERICAN  CRIMINAL  REPORTS. 


of  a  statute  authorizing  tlic  partners  to  sue  in  their  firm  name.  People  v. 
Bogart,  36  Cal.,  245;  Abernathy  v.  Latimore,  19  Ohio,  280;  Bernard  v.  Pur- 
vin,  1  Morris  (Iowa),  309, 

Interest  in  the  property  embezzled. —  If  the  defendant  has  an  interest  in 
the  property  of  which  he  is  accused  of  embezzling,  as,  for  example,  when 
the  party  was  to  receive  five  per  cent,  of  all  tho  pew  rents,  no  matter  who 
collected  them,  this  is  not  embezzlement,  because  to  constitute  embezzle- 
ment the  property  must  belong  to  another  than  the  defendant.  State  v, 
Kent,  22  Minn.,  41 ;  Reg.  v.  Bren,  0  Cox,  C.  C,  898. 

But  we  think  the  better  rule  is  as  stated  by  the  supreme  court  of  Missouri 
in  a  very  recent  case  (State  v.  Shadd,  80  Mo.,  358).  In  that  case  it  is  held 
that  one  Avho  auctions  off  "pools "upon  a  horse  race,  and  receives  the 
money  of  the  purchaser,  is  the  agent  of  such  purchaser,  and  if  he  fraudu- 
lently converts  such  money  to  his  own  use  he  is  guilty  of  embezzlement  — 
and  that  this  is  so  although  the  money  was  placed  in  his  hands  for  an  im- 
moral purpose.  It  was  alao  held  in  that  case  that  the  per  cent,  which  the 
"pool"  seller  was  to  receive  migJit  be  deducted  from  the  amount  deposited 
with  him.  Campbell  v.  The  State,  35  Ohio  St.,  70.  See,  also,  Reg.  v.  Bailey, 
12  Cox,  C.  C,  50. 

The  member  of  a  co-operative  society  may  bo  guilty  of  larceny  in  steal- 
ing money  from  the  person  in  charge  of  the  store,  who  has  to  account  to 
the  treasurer  for  all  moneys  received  by  him,  and  the  person  there  in  charge 
has  sufficiont  pro])erty  in  the  money  stolen  to  sustain  the  allegation  of  ovni- 
ership.    Reg.  v.  Burgess,  9  Cox,  C.  C,  302;  Reg.  v.  Webster,  9  Cox,  C.  C,  13. 

Allegation  of  value. — "  Being  then  and  there  tho  bailee  of  four  hundred 
thousand  dollars,  the  moneys,  goods  and  chattels,"  etc.,  held,  bad,  as  the 
court  cannot  know  that  by  four  hundred  thousand  doUai-s  was  meant  so 
much  lawful  money  of  tho  United  States;  "  for  aught  we  may  know,  it  is 
the  currency  of  some  other  state  or  nation,  and  not  sufficient  in  amount  to 
charge  the  defendant,  under  our  statutes,  with  grand  or  petit  larceny." 
People  V.  Cohen,  8  Cal.,  42.  See,  also,  Menvin  v.  The  People,  26  Mich.,  298; 
Smith  V.  The  State,  38  Ind.,  159. 

On  the  trial  of  an  indictment  which  charges  the  embezzlement  of  money 
only,  it  is  error  to  admit  evidence  of  the  embezzlement  of  county  orders. 
Goodhue  v.  The  People,  94  111.,  37. 

Tim  indictment. —  An  indictment  for  embezzlement  under  the  statute  must 
aver  that  the  defendant  was  a  clerk  or  servant  of  some  person  (or  an  officer 
or  agent  of  a  corporation),  and  that  the  property  he  is  charged  with  embez- 
zling came  to  his  possession  or  under  his  care  by  virtue  of  such  employment. 
The  indictment  alleged  that  the  defendant  on,  etc.,  as  the  agent  of  W.  II. 
S.,  had  collected  and  received  certain  money  for  him,  the  said  S.,  to  wit,  etc. ; 
that  said  defendant,  after  having  received  said  money,  and  which  came  to 
liis  possession  and  under  his  care  by  virtue  of  his  employment  as  .such  serv- 
ant of  said  S.,  and  while  he  was  such  servant  of  said  S.,  did  feloniously 
embezzle,  etc.  It  was  proved  on  the  trial  that  tho  defendant,  who  was  a 
constable,  was  employed  by  S.  to  collect  several  small  accounts  against  dif- 
ferent individuals.  In  reversing  the  case,  Beardsley,  Ch.  J.,  speaking  for 
the  court,  says:  But  the  first  count  of  this  indictment  charges  "  that  the  de- 
fendant, as  the  agent  of  S.,  collected  and  received  the  money  alleged  to  have 


STATE  V.  COSTIN. 


177 


been  embezzled,  and  not  that  it  was  collected  and  received  as  his  clerk  or 
servant.  Nor  is  the  averment  that  the  money  was  received  as  agent,  at  all 
changed  or  qualified  by  the  subsequent  allegation  that  it  came  to  the  pos- 
session of  the  defendant '  by  virtue  of  his  said  employment  as  such  servant 
of  the  said  S.,  and  wliile  ho  was  such  ser\'ant  as  aforesaid.'  This  only 
amounts  to  an  allegation  that  the  money  was  received  by  the  defendant  as 
such  servant,  as  an  agent  is  or  may  be,  and  not  that  ho  in  fact  received  it  .is 
the  servant  of  S." 

"  Tlie  term  agent  is  nomcn  general issimum,  and  although  it  includes  clerks 
and  servants,  who  are  properly  agents  of  their  employers  and  masters,  it  is 
by  no  means  restricted  to  such  persons.  Paley  on  Agency,  by  Dunlap,  p.  1, 
and  note."  The  People  v.  Allen,  5  Dcnio,  76,  cited.  Kiba  v.  Tlic  People,  81 
m.,  599.    Sec,  also,  Bish.  Cr.  Law,  sees.  341,  341a. 

An  indictment  which  avers  that  the  defendant "  was  intrusted  by  J.  S.  with 
certain  property  and  to  deliver  the  same  to  sa'.d  S.  on  demand,"  and  after- 
wards "  refused  to  deliver  the  said  prop(>rty  to  said  S.,  and  feloniously  did 
embezzle  and  fraudulently  convert  to  his  own  use,  the  same  then  and  there 
being  demanded  of  him  by  said  S.,"  etc.,  is  fatally  defective  by  reason  of 
omitting  to  state  the  purpose  for  which  the  defendant  was  intrusted  with 
the  property,  and  for  the  further  reason  that  it  did  not  name  any  property, 
either  that  belonging  to  S.  or  any  other  jiorson,  which  was  then  and  there 
feloniously  converted  and  embezzled.  Com.  v.  Smart,  6  Gray,  15,  citeil. 
Kibs  V.  The  People,  81  111.,  599. 

Tlie  indictment  must  set  out  the  acts  of  embezzlement.  The  defendant's 
fiduciary  character,  which  is  the  distinguishing  feature  l)etween  embezzle- 
ment .and  larceny,  must  l)e  specirically  averred.  Klbs  v.  The  People,  81  111., 
ROO;  The  State  v.  Johnson,  49  Iowa,  141. 

Some  general  points. —  The  owner  must  be  produced,  to  show  the  taking 
to  have  been  without  his  consent,  and  the  evidence  of  a  third  person  wUl 
not  suflSce.    State  v.  Morey,  2  Wis. ,  494. 

Construction  of  tlie  words  in  the  Iowa  statute  "  or  if  any  other  person "' 
intrusted  with  such  property,  etc.     The  State  v.  Stoller,  38  Iowa,  321. 

See  full  discussion  a.s  to  the  alh>gations  necessary  to  charge  embezzlement 
by  officers.    State  v.  Brandt,  41  Iowa,  007. 

Refusal  to  pay  over  funds  collected  is  not  sufficient,  even  under  a  statute 
which  makes  it  prima  facie  evidence  of  embezzlement  for  an  officer  not  to 
pay  over  funds  collected.  United  States  v.  Forsythe,  6  McLean,  584;  Rex 
V.  Smith,  Russ.  &  R.,  267;  Batehedor  r.  Tenny,  27  Vt.,  378. 

A  servant  who  receives  from  his  master  goods  or  money  to  use  for  a  spe- 
cific purpose,  lias  the  custody  of  them,  but  the  possession  remains  in  the 
master,  and  a  fraudulent  and  felonious  appropriation  of  them  would  be  lar- 
ceny. CommonipeaUh  v.  Berry,  99  Mass.,  428.  See,  also,  Kibs  v.  The  People, 
81  111.,  599. 

Money  is  "property,"  within  the  meaning  of  a  statute  which  enacts 
that  if  any  person  shall  feloniously  steal  the  property  of  another,  "  in  any 
other  state  or  county,  and  shall  bring  the  same  into  this  state,"  he  shall  be 
guilty  of  larceny.    People  v,  Williams,  24  Mich.,  156. 

Bank-notes  are  not  "  goods  or  chattels"  within  the  meaning  of  a  statut* 
which  provides  that  "  if  any  person  shall  receive  or  buy  any  goods  or  chat- 
V0L.IV  — 18 


^ 


178 


AMERICAN  CRIMINAL  REPORTS. 


tela  tliat  shall  be  stolen  or  taken  by  robbery,"  etc.    Tlte  State  v.  Calvin,  3 
Zabr.  (N.  J.),  207. 

Bank-bills  cannot  be  regarded  as  money  within  the  moaning  of  a  statute 
which  piovides  that  if  any  person  shall  steal  "  any  money  or  other  personal 
goods  or  chattels,"  etc.    Johnson  v.  '^le  State,  11  Ohio  St.,  834. 


Hess  v.  State. 

(45  N.  J.,  445.) 

Evidence:  Quarantine. 

Sale  of  cattle  ttnder  (jCARAimirE  —  Belief  that  quaranttne  had  been 
UEMOVKD  may  BE  SHOWN. —  On  an  indictment  for  selling  cattle,  knowing 
them  to  be  under  quarantine,  evidence  was  given  on  the  trial  of  facts 
tending  to  create  a  belief  in  the  mind  of  defendant  that  the  quarantine 
had  been  removed  when  the  sale  was  made.  It  was  held  error  in  the 
court  to  refuse,  on  rcfiucst,  to  charge  for  an  acquittal  if  the  jury  found 
that  tlie  defendant  did  so  believe  on  those  facts. 

On  error  to  the  Essex  Quarter  Sessions.  Argued  before 
Beaslcy,  Chief  Justice,  and  Justices  Depue,  Van  Syckel  and 
Knapp. 

Charles  Bried,  for  the  plaintiff  in  error. 
Oscar  Keen,  for  the  state. 

The  opinion  of  the  court  was  delivered  by 

Knapp,  J.  By  the  first  section  of  a  supplement  approved 
March  17,  1882,  to  the  act  establishing  a  state  board  of  health, 
passed  March  9, 1877,  it  is  enacted  that  if  any  person  shall 
knowingly  buy  or  sell  any  animal  that  is  in  herd  held  in  quaran- 
tine, or  that  has  been  e.xiK)sed  to  a  contagious  disease,  ho  shall 
be  subject  to  the  penalties  contained  in  section  8  of  the  supple- 
ment approved  March  1%  1880.  Section  8  of  the  act  referred 
to  enacts  that  if  any  person  or  persoiis  shall  knowingly  either 
buy  or  sell,  or  cause  to  be  bought  or  sold,  any  animal  affected 
with  the  pleuro-pneumonia  or  other  contagious  or  infectious 
disease,  such  person  shall  be  deemed  guilty  of  a  misdemeanor, 
and,  upon  conviction  thereof,  shall  be  punished  by  a  fine  not 
exceeding  $200,  or  imprisonment  not  exceeding  one  year,  or 
both,  in  the  discretion  of  court.    Section  2  of  the  last  named 


act  auth( 
of  any  c( 
of  the  ex 
the  suspe^ 
and  take 
necessary 
ants  to  ai 

The  de 
ingly  selli 
an  tine  by 
the  legisli 

It  was  \ 

of  the  boa 

cers,  had  i 

them  quai 

herd  was  i 

1882.    In 

the  cows  ! 

quarantine 

the  trial  I 

verbally  t 

were,  as  1 

fore  the 

of  criraini 

by  a  defc 

had  been 

this  tcstiii 

tion  of  de 

of  notice 

ban  of   tl 

adopted  a 

the  (juarai 

defendant 

was  to  ex  J 

to  exorcist 

was  made 

present  or 

and  then, 

he  was  tol 

he  made 


HESS  V.  STATE. 


179 


act  authorized  tho  state  board  of  health,  upon  the  breaking  out 
of  .iny  contagious  or  infectious  disease,  or  upon  the  suspicion 
of  tho  existence  of  such  disease  in  any  locality,  to  proceed  to 
the  suspected  place  and  to  quarantine  said  animal  or  animals, 
and  take  such  precautionary  measures  as  sliould  bo  deemed 
necessary.  The  act  also  authorized  the  appointment  of  assist- 
ants to  aid  and  supervise  in  tho  duties  of  inspection. 

The  defendant  was  mdicted,  tried  and  convicted  for  know- 
ingly selling  a  cow  out  of  a  herd  then  and  there  held  in  quar- 
antine by  said  board  under  the  authority  conferred  upon  it  by 
the  legislature  referred  to. 

It  was  proved  on  the  trial  of  the  indictment  that  the  secretary 
of  the  board,  together  with  one  Dr.  Hawk,  one  of  its  medical  offi- 
cers, had  in  June,  1882,  examined  defendant's  cattle  and  ordered 
them  quai'antined,  giving  notice  thereof  to  the  defendant.  The 
herd  was  attended  by  Dr.  Hawk  through  the  summer  and  fall  of 
1882.  In  September  of  that  year,  the  defendant  sold  one  of 
the  cows  so  ])laccd  under  quarantine,  no  formal  act  raising  the 
quarantine  having  then  been  promulgated  by  the  board.  On 
the  trial  Dr.  Hawk  testified  that  he  informed  the  defendant 
verbally  that  his  cattle  were  no  longer  sick,  and  that  they 
were,  as  he  expressed  himself,  "  then  all  right."  This  was  be- 
fore the  date  of  the  alleged  sale.  A  conviction  of  this  form 
of  criminality  could  be  had  only  upon  evidence  showing  a  sale 
by  a  defendant  who  know  when  he  made  it  that  interdict 
had  been  put  upon  such  sale  and  was  then  continuing;  and 
this  testimony  of  Dr.  Hawk  became  important  upon  the  ques- 
tion of  defendant's  knowledge.  The  statute  provided  no  form 
of  notice  to  be  given  to  parties  who  were  placed  under  this 
ban  of  tho  removal  of  the  restriction.  If  the  board  had 
adopted  any  settled  method  of  notifying  cattle-owners  when 
the  (juavantine  was  removed,  it  was  not  made  known  to  this 
defendant,  nor  was  he  informed,  so  far  as  appears,  of  wh.at  ho 
was  to  expect  as  assurance  of  his  release  from  the  prohibition 
to  exercise  full  ov/nership  and  control  over  his  property.  He 
was  made  to  understand  that  because  of  sickness  in  his  stock, 
present  or  anticipated,  he  must  not  put  them  upon  the  market, 
and  then,  by  one  of  the  officers  who  officiated  in  this  business, 
he  was  told  that  his  cattle  were  no  longer  sick,  and  after  that 
he  made  the  sale  for  which  the  grand  jury  presented  him. 


180 


AMERICAN  CRIMINAL  REPORTS. 


Kow,  under  these  facts  of  the  case,  the  court  was  asked  to  in- 
struct the  jury  that  if,  from  what  Dr.  Hawk  said  to  the  de- 
fendant, the  jury  should  find  that  the  defendant  believed  the 
quarantine  had  then  been  raised,  the}  must  acquit  him.  This 
instruction  the  judge  declined  to  give  to  the  jury,  holding, 
virtually,  that  his  acquittal  must  depend  upon  the  power  of 
Dr.  Hawk  to  remove  the  quarantine,  and  the  fact  of  its  re- 
moval by  him.  This  charge,  I  think,  should  have  been  given 
as  requested  by  the  defendant.  Guilty  knowledge  of  the  de- 
fendant in  the  act  of  sale  Avas  an  essential  element  of  crim- 
inality. The  statute  makes  the  existence  of  the  quarantine 
and  the  defendant's  scienter  facts  jointly  essential  to  guilt. 
Dr.  Hawk  may  not  have  had  conferred  on  him  the  right  of 
revocation  which  the  board  of  health  possessed,  or,  having  it, 
may  not,  in  fact,  have  exercised  such  right,  and  yet  his  posi- 
tion was  such  that  declarations  of  a  character  kindred  to  those 
which  he  admits  to  have  made  to  defendant,  might  have  led 
the  defendant  to  the  honest  belief  that  he  was  no  longer  held 
under  the  restrictions  which  had  been  upon  him  three  months 
prior  by  the  officers  of  the  board  of  health;  and  if  he  did  so 
believe,  and  under  that  belief  n^ade  the  sale,  it  cannot  be  said 
that  he,  within  the  meaning  of  the  act,  knowingly  sold  an  ani- 
mal from  his  herd  then  held  in  quarantine.  As  a  gcnciii'. 
rule,  intent  and  knowledge  is  of  the  very  essence  of  crime,  and 
wherever  a  statute  makes  a  guilty  knowledge  part  of  the 
definition  of  an  offense,  knowledge  is  a  material  fact  to  bo 
averred  and  proved.  Rex  v.  Juhes,  8  T.  K.,  536.  And  the 
burden  of  prof^f,  which,  in  such  case,  does  not  shift,  is  cast 
upon  the  state.    1  Lead.  Cr.  Cas.,  553. 

The  sale  of  cattle  is  in  itself  an  innocent,  lawful  act.  The 
statutory  offense  is  selling  in  violation  of  a  known  interdict. 
When  the  case  shows  that  a  defendant,  on  fair  and  just 
grounds,  believes  the  legal  imj)ediment  to  be  out  of  the  way, 
guilty  knowledge  is  disproved,  and  a  defense  is  made. 

Upon  the  testimony  referred  to  a  jury  would  have  been  jus- 
tified in  finding  that  there  was  reasonable  ground  upon  whicli 
the  defendant  could  have  rested  an  honest  belief  that  the  quar- 
antine had  been  removed,  and  that  thereby  such  belief  had 
been  created  in  his  mind  under  which  he  acted ;  consequently, 
that  the  sale  by  the  defendant  was  outside  of  the  statutory 


STATE  OF  LOUISIANA  v.  MULLEN. 


181 


misdemeanor.  The  jury  should  have  beea  permittecl  to  pass 
upon  the  question. 

The  trial  judge  did  charge  the  jury  pointedly  upon  the  ne- 
cessity of  finding  guilty  knowledge  as  a  requisite  to  conviction ; 
but  he  did  not  permit  the  jury  to  give  the  proper  or,  indeed, 
any,  effect  to  an  honest,  well-founded  belief  of  the  non-exist- 
ence of  a  fact,  the  conscious  existence  of  which  avjis  of  the 
very  essence  of  guilt. 

Other  errors  have  been  assigned  upon  this  recoi'd,  but  their 
consideration  is  deemed  unnecessary,  inasmuch  as  we  think  the 
roquestcd  charge  should  have  been  given,  and  withliolding  it 
was  error  such  as  must  have  prejudiced  the  defendant  in  his 
trial  upon  the  merits.  For  that  cause  the  judgment  must  be 
reversed  and  a  venire  de  novo  awarded. 


State  of  Louisiana  v.  Mullen,   i 

(83  La.  Ann.,  159.) 

Evidence  :  Testimony  of  convict. 

CtoNViCT  CANNOT  BE  swouN  IN  A  CAUSE.— The  (listi-ict  court  having  ad- 
mitted the  testimony  of  a  convicted  felon,  notwithstanding  the  defend- 
ant's objection,  the  verdict  of  the  jury  must  be  set  aside  and  a  new  trial 
granted,  although  the  objectionable  witness  testified  ho  knew  nothing 
about  the  case. 


Appeal  from  the  Second  Judicial  District  Court,  Parish  of 
Bossier.    Drew,  J. 

/.  A.  W.  Lowru^  district  attorney,  and  «/.  C.  Eagan^  attorney- 
general,  for  the  state,  appellee. 

ir.  O.  McDonald  and  J.  Ilenry  Shepherd,  for  defendant  and 

appellant. 

Tiie  opinion  of  the  court  was  delivered  b/ 

PociiK,  J.  The  defendant,  having  been  convicted  of  the 
crime  of  rescuing  persons  committed  to  prison  for  capital 
crimes,  and  having  been  sentenced  to  imprisonment  for  two 
years  in  tlie  state  penitentiary,  has  taken  this  appeal,  and  relies 


182 


AMERICAN  CRIMINAL  REPORTS. 


for  reversal  of  the  judgment  on  a  bill  of  exceptions  taken  from 
the  ruling  of  the  district  judge  in  admitting  as  a  witness  on 
behalf  of  the  state  one  Thomas  Campbell,  a  convicted  and  un- 
pardoned felon. 

The  bill  shows  that  defendant  objected  to  the  witness  on  ac- 
count of  his  alleged  incompetency,  which  was  proved  by  tho 
record  of  the  court  by  which  he  had  been  convicted  and  sen- 
tenced, notwithstanding  which  objection  and  proof  the  witness 
was  sworn  and  allowed  to  testify. 

The  judge  assigns  in  the  bill,  as  reasons  to  justify  his  course, 
that  the  accused  was  not  injured  by  the  obnoxious  witness, 
who  stated  that  he  knew  nothing  of  the  case,  as  he  was  asleep 
in  the  jail  at  the  time  that  the  re3cue  was  effected. 

We  are  at  a  loss  to  conceive  how  such  a  circumstance  could 
justify  the  court  in  allowing  an  incompetent  witness  to  testify 
in  the  case. 

We  are  yet  to  learn  that  the  nature  or  character  of  the  tes- 
timony which  may  or  may  not  be  given  by  a  pvoffeved  witness 
can  be  used  as  a  test  of  his  competency  to  bo  heard  in  evidence. 

Under  tho  commoi.  law,  felons  are  incapacitated  from  testi- 
fying by  reason  of  their  infamy,  and  because  of  their  want  of 
honor  and  honesty  their  oath  is  entitled  to  no  weight. 

As  soon  as  proof  is  made  of  the  witness'  conviction  and  sen- 
tence of  an  infamous  ciime,  his  mouth  is  scaled,  and  ho  cannot 
be  heard,  without  considering  the  nature  or  effect  of  the  tcs 
timony  which  he  might  give. 

In  this  case,  proof  having  been  given  of  tho  conviction  and 
sentence  of  Thomas  Campbell,  objection  having  been  made  l)y 
the  defendant  to  his  being  sv  orn  and  heard  as  a  witness,  for 
reason  of  his  infamy,  it  was  Liie  boundon  duty  of  the  judge  to 
exclude  his  testimony.  Under  the  ruling  of  tho  judge  the 
accused  has  not  had  a  fair  and  impartial  trial  (IG  Ann.,  273),  and 
he  is,  therefore,  entitled  to  relief. 

It  is,  therefore,  ordered,  adjudged  and  decreed  that  the  ver- 
dict of  the  jury  be  set  aside,  and  the  judgment  of  the  lower 
court  nnnuUed,  avoided  and  reversed.  And  it  is  further  ordered 
that  the  cause  be  remanded  to  the  lower  court  for  a  now  trial 
according  to  law,  and  to  the  views  herein  expressed. 


Dii  Bos~ 


' 


BLACKWELL  v.  THE  STATE. 


183 


Blackwell  v.  The  State. 

(67  Ga.,  76.) 

Evidence  :  Erroneous  assumption  of  fact  by  court. 

1.  COMPELLINa  PRISONER  TO  MAKE    PROFERT   OF    HIMSELF. —  In  a  Criminal 

Ctose,  the  place  at  which  the  prisoner's  leg  was  amputated  being  a  ma- 
terial point,  it  was  error  for  the  court  to  require  him  to  make  profert  of 
himself,  so  that  a  witness  could  see  him  and  describe  his  condition  to  the 
jury.  A  defendant  in  a  criminal  case  cannot  be  required  to  give  evi- 
dence against  himself,  either  by  acts  or  words. 
3.  Error  to  state  that  a  contested  point  is  conceded.— To  state  to 
the  jury  in  a  murder  case  that  it  was  conceded  that  the  deceased  was 
killed  with  a  pistol  was  error,  where  no  such  concession  was  made,  and 
the  weapon  used  was  a  material  question  in  the  case.  That  the  de- 
fendant denies  altogether  that  ho  committed  the  homicide  does  not 
admit  its  commission  in  the  manner  claimed  by  the  state. 


Before  Judge  Pottle. 


Elbert  Superior  Court. 


Mc  Whorter  cfe  Mo  Whorter,  Worley  <&  Carlton  and  D.  M. 
Da  Bose,  for  plaintiff  in  error. 
George  F.  Pierce,  solicitor-general,  for  the  state. 

Si'eek,  Justice.  The  plaintiff  in  error  was  indicted  for  the 
offense  of  murder.  On  arraignment  and  trial  had,  the  jury 
found  him  guilty,  and  the  sentence  of  death  was  pronounced 
against  him.  During  the  term  of  the  court  a  motion  for  a  new 
trial  (subse(|uently  amended)  was  made  on  various  grounds,  as 
set  forth  in  the  record,  which  was  overruled  by  the  court,  and 
defendant  below  excepted. 

The  evidence  upon  which  the  defendant  was  convicted  was 
wholly  and  entirely  circumstantial. 

The  third  ground  of  the  motion  for  a  new  trial  was  as 
follows : 

"  Because  the  court  erred  in  ordering  and  directing  the  de- 
fendant to  stand  up  for  the  purpose  of  allowing  a  witness  for 
the  state  then  on  the  stand,  to  wit,  R.  E.  Adams,  to  see  and 
testify  where  his  (defendant's)  leg  was  cut  off,  and  in  admitting 
the  testimony  based  on  said  inspection." 

The  liftli  ground  of  the  motion  was  as  follows: 

"  Because  the  court  instructed  and  charged  the  jury  that  it 
is  conceded  in  this  case  that  the  woman,  McMahan,  is  desid;  it 
is  conced<'d  that  site  was  shot  with  a  pistol,  and  came  to  hor 


184 


AMERICAN  CRIMINAL  REPORTS. 


death  by  a  pistol  shot,  and  the  only  question  for  you  to  deter- 
mine is,  who  did  the  killing  (no  such  admission  or  concession 
having  been  made  by  the  defendant  or  his  counsel)?"  In  refer- 
ence to  this  fifth  ground  of  the  motion,  the  court  certifies  thus 
in  explanation:  "Tliis  ground  does  not  appear  in  the  original 
motion  which  was  made  at  the  term  soon  after  the  conviction. 
There  was  no  word  said  expreanhj  conceding  that  the  death 
was  caused  hj  a  pistol  shot,  but  the  whole  defense  and  argu- 
ment went  to  tlie  point  that  the  defendant  did  not  do  the  hill- 
ing. I  so  undei'stood  the  counsel.  No  point  was  made  upon 
the  mode  of  her  death.  When  the  charge  was  read  to  tlio 
jury,  counsel  did  not  call  the  attention  of  the  court  to  that 
part  of  the  charge.  If  I  had  misconstrued  them  I  would  have 
gladly  recalled  the  remark,  if  my  attention  had  been  called  to 
it.  I  had  the  impression  from  the  general  line  of  the  defense 
that  such  was  conceded." 

I.  In  reference  to  the  third  ground  of  the  motion,  it  appears 
that  E.  E.  Adams,  a  witness  for  the  state,  w.as  being  examined, 
who,  as  appears  in  the  record,  was  testifying  as  to  tracks  and 
impressions,  as  they  appear  to  have  been  made  on  the  ground 
at  and  near  the  house  at  Avhich  the  deceased  was  slain  the 
night  before.  He  said :  "  The  track  we  saw  was  left  foot  of 
man,  and  like  he  was  on  his  knee  of  other  leg ;  I  saw  where 
he  got  on  the  horse ;  there  were  three  places  where  he  had 
mired  about  six  inches ;  we  tracked  the  horse  on  out  and  found 
where  it  had  run  up  against  a  chestnut  limb ;  I  knew  the  de- 
fendant ;  I  knew  the  defendant,  Allen  Blackwell ;  his  right  leg 
is  out  off ;  he  has  a  left  foot,  but  no  right  foot ;  [apron  pro- 
duced] that  is  a  part  of  an  apron  such  as  shoenu^ker3  gener- 
ally wear  [the  apron  produced  was  a  piece  of  old,  striped 
cloth,  about  one-third  or  one-half  yard  long,  with  a  string  at 
upper  end  long  enough  to  go  around  a  man's  neck];  shoe- 
makers generally  wear  aprons  from  material  of  that  sort ;  the 
death  occurred  in  Elbert  county.  Question  (by  the  court): 
Iloio  muoh  of  his  leg  has  the  prisoner  had  cut  offf  Answer:  I 
don't  know,  sir;  I  just  know  he  is  one-legged;  /  canH  «<?<?." 
[Here,  by  order  of  the  court,  the  prisoner  stood  up  and  showed 
his  leg,  and  then  witness  answered  :J  "■  Ilia  leg  is  cut  off  bo- 
low  vhe  knee." 

The  testimony  thua  quoted  makes  it  clear  that  a  portion  of 


BLACKWELL  v.  THE  STATE. 


185 


this  testimony,  thus  allowed  to  be  given  by  the  witness  against 
the  prisoner,  was  in  consequence  of  the  order  and  command  of 
the  court  in  directing  the  prisoner  "  to  stand  up  "  before  the 
jury  that  the  witness  might  be  enabled,  from  inspection,  to  tes- 
tify as  to  the  character  and  extent  of  the  amputation  of  pris- 
oner's right  leg.  Was  this  evidence  admissible,  and  did  the 
court  have  authority  to  compel  the  prisoner  to  make  a  jprofert 
of  his  person  before  a  Avitncss  and  the  jury  in  order  to  supply 
what  the  court  must  have  deemed  testimony  material  to  the 
issue  on  trial? 

Let  it  be  borne  in  mind  tliat  a  most  material  and  important 
part  of  the  testimony  against  the  prisoner  was  the  character 
of  the  track  and  signs  nuide  the  niglit  of  tlie  murder  by  the 
one  who,  in  the  dark,  approached  tiio  house  Avhere  deceased 
was  and  fired  the  fatal  shot  that  caused  her  deatli.  The  track 
and  signs  indicated  the  assassin  had  but  one  leg,  but  the  char- 
acter of  the  other  print  on  the  ground  depended  materially 
upon  the  character  of  the  amputation  of  the  other  limb,  and  it 
no  doubt  was  to  establish  the  correspondence  between  the 
amputated  limb  of  prisoner  and  the  signs  on  the  ground,  as 
testified  to  by  the  witness,  that  influenced  the  court  to  order 
prisoner  to  make  profert  of  his  limb  to  the  Avitness  testifying 
and  necessarily  to  the  jury. 

In  the  case  of  Day  v.  The  State,  03  Ga.,  GG9,  this  court  hold : 
"Evidence  M«^  a  witness  forcibltj  \A'Acci\.  defon  hint's  foot  in 
certain  tracks  near  tlie  scene  of  tlie  burglary,  and  tluit  they 
were  of  the  same  size,  is  not  admissible.  A  defendant  cannot 
bo  compelled  to  criminate  himself  by  acts  or  words."  The 
court  say:  "By  the  constitution  of  this  state  no  pei'son  shall 
be  compelled  to  give  testimony  tending  in  any  manner  to 
criminate  himself;  nor  can  one  by  force  compel  another  against 
his  consent  to  put  his  foot  in  a  shoe-track  for  the  purpose  of 
using  it  as  evidence  against  him  on  the  criminal  side  of  the 
court." 

In  the  case  of  State  v.  Jacobs,  5  N".  C.  Rep.,  259,  the  court 
says:  "  A  judge  has  not  the  right  to  compel  a  defendant  in  a 
criminal  prosecution  to  exhibit  himself  to  the  inspection  of  the 
jury  for  the  purpose  of  enabling  t/iem  to  determine  his  status 
as  a  free  neffro." 

So  in  the  case  of  Stolces  v.  State,  30  Araer.  Rep.,  72,  the  court 


180 


AMERICAN  CRIMINAL  REPORTS. 


'  ■  ■    .  ■  ...03 


held :  "  On  an  accusation  of  murder,  it  being  claimed  that  cer- 
tain footprints  were  those  of  the  prisoner,  the  prosecuting 
attorney  brought  a  pan  of  mud  into  court  and  placed  it  in 
front  of  the  jury,  and  having  proved  that  the  mud  in  the  pan 
was  about  as  soft  as  that  where  the  tracks  were  found,  called 
on  the  prisoner  to  put  his  foot  in  the  mud  in  the  pan.  On 
objection,  tlie  court  instructed  the  prisoner  that  it  was  optional 
with  him  whetlicr  he  Avould  comply.  The  prisoner  refused, 
and  the  court  instructed  the  jury  that  his  refusal  was  not  to  be 
taken  against  him.  The  prisoner  being  convicted,  held,  lie  wm 
entitled  to  a  new  triaV  See,  also,  Y-t  N.  C,  G4G ;  21  Am.  Rcj)., 
493;  33  id.,  540. 

II.  Was  there  error  in  stating  to  the  jury  in  the  charge,  as 
set  forth  in  the  fifth  ground  of  the  motion,  "  It  is  conceded  in 
this  case  that  the  woman,  Caroline  McMahan,  is  dciid ;  it  is 
conceded  that  she  was  shot  with  a  pistol,  and  the  only  question 
for  you  to  determine  is,  who  did  the  lulling?"  The  only  evi- 
dence on  this  subject  as  appears  in  the  record,  as  to  the  imple- 
ment used  in  shooting  deceased,  was  the  testimony  of  the 
witness  Katie  Henry,  who  was  Avith  deceased  at  the  time. 
They  were  engaged  at  the  time  at  night  in  work  on  a  quilt, 

Katie  Henry  testified:  "Aunt  Sukey  went  round  to  make 
up  a  liglit ;  while  she  was  there  a  pistol  or  gun  shot  off,  and 
Caroline  (deceased)  fell  under  the  quilt ;  I  saw  the  flash  of  tlus 
pistol ;  she  fell  as  soon  as  I  heard  the  report." 

Eoebuck  testified  he  was  present;  she  was  shot  about  0 
or  10  o'clock  at  night ;  she  was  shot  with  a  pistol  or  a  gun  or 
a  rifle  —  it  shot  a  ball. 

In  the  absence  of  all  other  testimony,  and  in  the  absence  of 
any  admission  by  prisoner  or  his  counsel  that  tlie  killing  was 
done  with  a  pistol,  was  there  error  in  the  court  instructing  tlio 
jury  "  that  it  was  a  conceded  fact  deceased  was  shot  with  a 
pistol?"  The  court,  in  his  explanatory  note  to  thii  ground, 
says :  "  There  was  no  word  said  expressly  conceding  that  tho 
death  was  caused  by  a  pistol  shot,  but  the  whole  defense  or 
argument  went  to  the  point  defendant  did  not  do  the  killing.'" 
But  surely  it  cannot  be  insisted  that  because  defendant  and  his 
counsel  utterly  denied  the  homicide,  they  thereby  admitted  it 
was  done  with  "  a  pistol."  The  liomicide  was,  under  the  evi- 
dence, an  assassination.    The  deceased  was  engaged  after  supper 


BLACKWELL  v.  THE  STATE. 


181 


in  quilting,  and  the  assassin  crept  near  the  house  and  fired 
(whether  through  a  door  or  window  does  not  appear),  and  de- 
ceased fell,  shot  through  the  head.  'No  face  Avas  seen,  but  a 
man  was  seen  to  run  off,  getting  over  tlie  fence  and  running 
up  a  gully.  Charging  the  jury  that  the  concei^.sion  had  been 
made  by  the  prisoner  or  his  counsel,  that  the  killing  was  done 
witli  a  pistol,  pointed,  with  startling  significance,  to  the  pris- 
oner {IS  the  murderer,  taken  in  connection  witli  the  other  cir- 
cumstances proved.  Next  morning  after  the  Icilling  his  house 
and  trunk  are  searched,  and  a  pistol  is  found  in  his  trunk  with 
one  barrel  recently  discharged,  the  other  barrels  not  loaded 
except  one,  and  aU  these  rusty  except  the  bai'rel  recently  dis- 
charged. 

To  tell  the  jury  that  defendant  admitted  deceased  was  killed 
Avitli  a  pistol,  when  no  one  could  have  known  in  tlie  dark,  but 
the  assassin,  the  Aveapon  used,  and  then  to  prove  the  prisoner 
was  in  possession  of  a  pistol  recently  fired  off  in  one  of  its 
barrels,  and  all  the  other  facts  that  point  so  significantly  to  his 
guilt,  was  to  leave  scarcely  a  hope  for  any  other  A-erdict  but  the 
one  rendereil.  How  much  this  "admitted  concession"  stated 
by  the  court  nuiy  have  infUicnccd  the  verdict  Ave  cannot  tell. 
It  formed  a  most  important  link  in  the  damaging  circumstances 
that  point  so  strongly  to  defendant's  guilt.  AVe  cannot  have, 
nor  do  avo  express,  any  sympathy  for  this  dai'k  assassination. 
We  Avill  not  say  the  verdict  rendered  Avas  not  abundantly  sus- 
tained by  the  testimony,  but  we  are  constrained  to  rule  that 
the  same  Avas  not  rendered  upon  a  fair  and  impartial  trial 
tmder  the  lata.  The  errors  of  law  constrain  us  to  order  a  rehear- 
ing. Better  that  the  vindication  of  outraged  justice  be  postponed 
for  a  season  than  that  a  human  being,  however  deeply  stained 
with  crime,  be  convicted  and  punished  contrary  to  law. 

It  is  the  duty  of  courts  to  hold  over  every  citizen,  hoAA'ever 
humble,  Avhen  arraigned  for  crime,  tlie  broad  oigls  of  the  laAv, 
and  to  see  to  it  tliat  he  has  the  full  measure  of  its  humane  pro- 
tection, until,  on  a  fair  and  impartial  trial,  under  its  rules,  h© 
has  been  duly  convicted. 

Let  the  judgment  of  the  court  below  be  reA^ersed  on  the 
ground  that  the  court  erred  in  refusing  a  noAv  trial. 

Judgment  reversed. 


188 


AMERICAN  CRIMINAL  REPORTS. 


Swan  v.  Commonwealth. 

(104  Perm.  St.,  218.) 

Evidenck:  Other  offenses. 

1.  Other  offenses  cannot  be  shown  unless  connected.— Evidence  of 
the  perpetration  by  tlie  defendant  of  a  crime  other  than  that  on  trial  is 
not  admissible  miless  such  connection  be  shown  between  the  two  of- 
fenses as  tends  to  prove  that  if  the  defendant  were  guilty  of  the  one,  lie 
was  also  guilty  of  the  other. 

3.  Circumstances  explanatory  op  such  evidence  are  admissible.— a. 
and  B.  were  jointly  indicted  for  robbing  C.'s  store.  On  the  same  day 
and  in  the  same  locality,  D.'s  house  was  also  robbed,  to  wliich  offense  A. 
liad  pleaded  guilty  on  another  indictment.  The  commonwealth,  on  the 
theory  that  A.  and  B.  were  members  of  an  organization  banded  together 
to  commit  burglary,  offered  evidence  of  A.'s  complicity  in  the  robbing 
of  D.'s  house  to  support  the  indictment  against  A.  and  B.  There  was 
some  evidence  that  on  the  day  in  question  A.  and  B.  were  seen  together 
in  that  locality.  Held,  that  no  such  connection  was  established  between 
the  offenses  as  warranted  the  submission  to  the  jury  of  the  evidence  of 
A.'s  complicity  in  the  robbery  of  D.'s  house,  so  as  to  affect  B. 

Before  Gordon,  Trunkey,  Sterrett,  Green  and  Clark,  JJ. 
Mercur,  C.  J.,  and  Paxson,  J,,  absent. 

Error  to  the  quarter  sessions  of  Armstrong  county. 

Indictment  of  Charles  Swan  and  F.  E.  Lynch  for  burglary 
and  larceny. 

David  Barclay,  for  the  plaintiff  in  error. 
31.  F.  Leason,  for  the  defendant  in  error. 

Mr.  Justice  Clakk  delivered  the  opinion  of  the  court,  Octo- 
ber 29, 1883. 

We  are  of  opinion  that  there  was  error  in  the  refusal  of  the 
court  to  limit  the  effect  of  the  testimony  of  Koss  Ecynolds, 
Esq.,  and  in  allowing  it  to  go  to  the  jury  to  affect  Charles 
Swan,  the  plaintiff  in  error. 

Testimony  had  been  received  showing  the  perpetration  of 
other  similar  crimes  in  the  vicinity,  at  and  about  the  same 
time  Lynch  had  plead  guilty  to  one  of  these,  the  Eeynolds 
robbery,  and  the  testimony  was  admitted  "to  throw  what 
light"  the  jury  might  "discover  from  it,  of  the  parties 
charged,  composing  or  being  a  part  of  an  organization,  banded 
together  for  the  purpose  of  committing  crimes  of  the  kind 
charged." 


SWAN  V.  COMMONWEALTH. 


It  is  certainly  true  that,  in  a  criminal  trial,  evidence  may  bo 
received  of  any  one  of  a  system  of  crimes,  mutually  de- 
pendent, but  there  must  be  a  system  established  between  the 
offense  on  trial,  and  that  introduced,  to  connect  it  with  the  de- 
fendant. Ilentcr  V.  Commonxcealth,  4  I*f orris,  139.  To  make 
one  criminal  act  evidence  of  another,  some  connection  must  ex- 
ist between  them ;  that  connection  must  be  traced  in  the  gen- 
eral design,  purpose  or  plan  of  the  defendant,  or  it  may  bo 
shown  by  such  circumstances  of  identification  as  necessarily 
tends  to  establish  that  the  person  who  committed  one  must 
have  been  guilty  of  the  other.  The  collateral  or  extraneous 
offense  must  form  a  link  in  the  chain  of  circumstances  or  proofs 
reUed  upon  for  conviction ;  as  an  isolated  or  disconnected  fact 
it  is  of  no  consequence ;  a  defendant  cannot  bo  convicted  of  the 
offense  charged  simply  because  he  is  guilty  of  another  offense. 

In  the  case  of  Goerson  v.  Commonxoealtli,  3  Out.,  388,  Mercur, 
J.,  giving  the  result  of  all  the  cases  upon  the  admissibility 
of  sucli  testimony,  sa^-s :  "  Yet,  under  some  circumstances,  evi- 
dence of  another  offense  by  the  defendant  may  be  given. 
Thus,  it  may  bo  to  estal)lish  identity';  to  show  the  act  charged 
was  intentional  and  wilful,  not  accidenttal;  to  prove  motive;  to 
show  guilty  knowledge  and  purpose,  and  to  rebut  any  inference 
of  mistake ;  in  case  of  death  b}'^  poison,  to  prove  the  defend- 
ant knew  the  substance  administered  to  be  poison ;  to  show 
him  to  be  one  of  an  organization  banded  together  to  commit 
crimes  of  the  kind  charged,  and  to  connect  the  other  offense 
with  the  one  charged  as  part  of  the  same  transaction." 

The  only  connection  shown  between  the  two  offenses  was 
the  fact  that  they  were  counnitted  in  the  same  town,  on  the 
same  day. 

Lynch  had  confessed  his  guilt  as  to  one  of  the  felonies, 
and  there  was  some  proof  as  to  his  guilt  in  the  other.  But 
what  evidence  was  this  as  to  Swan,  who  as  yet  was  presumably 
innocent  of  both? 

There  was  no  system  established  or  shown  between  the  two 
offenses  that  could  have  raised  any  presumption  of  Swan's  con- 
nection with  the  robbery,  charged  in  the  indictment,  from  the 
identification  of  the  articles  which  Lynch  confessed  he  had 
stolen  from  Reynolds.  If  these  articles  had  been  found,  wholly 
or  in  part,  in  Swan's  possession,  that  would  have  connected 


190 


AMERICAN  CRIMINAL  REPORTS. 


him  with  the  Eeynolds  robbery,  and  this,  taken  in  connection 
with  Lynch's  confessed  guilt  of  that  crime,  v>'ould  liave  shown 
such  a  confederacy  in  this  character  of  crime  at  the  time  and 
place  of  the  offense  on  trial  as  Avould  perhaps  have  rendered 
the  evidence  competent ;  but  it  is  a  rule  of  criminal  evidence 
that  an  extraneous  crime  cannot  be  put  in  evidence  against  a 
defendant  without  proof  in  some  form  that  he  was  concerned 
in  its  commission. 

It  is  said  that  Lynch  and  Swan  were  frequently  seen  to- 
gether, during  the  day-time  of  the  l-ith  of  September.  Tliis, 
as  an  independent  fact,  v:as  properly  for  the  consideration  of 
the  j'uy,  but  their  association,  so  far  as  observed,  was  for 
lawful  purposes,  and  proved  no  connection  between  the  two 
offenses.  It  was,  of  course,  competent  for  the  commonwealth, 
as  the  defendants  were  jointly  indicted  and  tried,  to  introduce 
any  evidence  tending  to  establish  the  guilt  of  either,  although 
it  might  incidentally  prejudice  the  other ;  but  the  testimony 
so  introduced  should  be  expressly  limited  in  its  effect.  Brandt 
V.  Commonicectlih,  13  Korris,  290. 

There  Avas,  we  think,  sufficient  evidence  in  this  case,  as 
against  Charles  Swan,  to  justify  a  submission  to  the  jury, 
although  it  certainly  was  very  slight ;  inasmuch,  however,  as 
the  record  contains  no  bill  of  exceptions  to  the  charge  of  the 
com't,  that  question  is  not  properly  before  us. 

Judgment  can  only  be  arrested  in  criminal  cases  for  causes 
appearing  upon  the  face  of  the  record.  This  is  a  general  rule, 
and  is  well  settled ;  an  exception  exists  when  pardon  is  pleaded 
before  sentence. 

For  the  reasons  assigned  in  the  former  part  of  this  opinion, 
the  judgment  is  reversed,  and  a  venire  facias  de  novo  awarded. 

Note. —  It  is  a  well-settled  nile  that,  in  the  trial  of  an  indictment  for  a 
specific  criminal  act,  evidence  tending  to  prove  the  commission  of  other 
ofifenses  is  inadmissible.  An  exception,  however,  is  made  in  respect  to  the 
malicious  burning  of  a  building  or  buildings,  at  a  prior  time,  with  a  view 
to  the  fraudulent  collection  of  the  insurance  money.  Commonwealth  v, 
McCarthy,  119  Mass.,  354.  As  pertinent  to  the  subject,  attention  maybe 
called  to  the  case  of  Barton  v.  The  State,  18  Ohio,  231,  where  the  court  held 
that,  although  an  indictment  may  contain  counts  for  horse  stealing  and  the 
grand  larceny  of  other  property,  the  offenses  being  of  the  same  nature,  and 
differing  only  in  degree,  yet  offenses  separate  and  distinct  in  character  can- 
not be  BO  joined.    It  is  never  admissible  to  prove  that  a  person  has  pre- 


viously com 
the  crimina 
Jordan  v.  ( 
gold  and  d( 
sale  upon  tl 
testimony  t 
the  defenda 
and  liabiliti 
and  fraudul 
said:  "The 
collateral  isi 
.-pal  issue  in 
requires  hiii 
opiwrtunity 
prove  tlie  it 
of  one  scJioi 
ixise."  In  ( 
dence  of  sir 
a  sliort  time 
showing  tht 
In  Reg.  v.  C 
ously  receiv 
goods,  not  ( 
of  guilty  ki 


Evidence— 

TRODCCI 

On  a  tri 
the  jury 
tion  of  d 
Jurispm 
and  no  t 
work  of 

Appeal 
San  Franc 

Darwin 
A.  L.  L 


PEOPLE  V.  WHEELER, 


in 


viously  committed  a  crime  of  a  similar  cliaracter  to  show  that  he  comn/tted 
the  criminal  act  for  which  he  is  on  trial.  The  principle  is  also  well  stat?'*  in 
Jordan  v.  Osgood,  100  Mass.,  457,  an  action  in  which  the  plaintiffs,  b.,ivinR 
gold  and  delivered  certain  goods  to  the  defendant,  sought  to  rescind  the 
Bale  upon  the  ground  of  fraud.  At  the  trial,  the  presiding  judge  admitted 
testimony  to  the  effect  that  at  or  alxnit  the  time  the  purchases  were  made 
the  defendants  falsely  and  fraudulently  represented  their  standing  capital 
and  liabilities  to  the  plaintiffs,  and  that  they  made  the  »amc  and  other  false 
and  fraudulent  rcpresentationB  to  others.  In  reference  to  this  the  court 
Raid:  "  The  admission  of  such  evidence  would  introduce  a  multiplicity  of 
collateral  issues,  calculated  to  withdraw  the  attention  of  the  jury  from  the 
rpal  issue  in  the  case ;  and  it  would  operate  unjustly  to  the  defendant,  as  it 
requires  him  to  explain  his  transactions  with  others,  without  any  notice  or 
opix)rtunity  for  preparation.  ,  .  .  Another  act  of  fraud  is  admissible  to 
prove  the  fraud  charged  only  when  there  is  evidence  that  the  two  are  parts 
of  one  Bchemo  or  plan  of  fraud,  committed  in  pursuance  of  a  common  pur- 
IKise."  In  Commonwealth  v.  Jackson,  133  Mass.,  10,  it  was  held  that  evi- 
dence of  similar  pretenses,  maile  by  the  defendant  in  sales  to  other  persons, 
a  sliort  time  prior  to  the  sale  in  question,  is  inadmissible  for  the  purpose  of 
showing  the  intent  with  which  tho  defendant  made  the  sale  of  the  animal, 
hi  Reg.  v.  Oddy,  5  Cox,  C.  C,  310,  it  wiu*  held  that,  upon  a  charge  of  feloni- 
ously receiving  stolen  gomls,  testimony  as  to  the  possession  of  other  stolen 
goods,  not  connected  with  the  immediate  charge,  is  not  admissible  in  proof 
of  guilty  knowledge,    But  see  Com.  v.  Corkin,  ante,  p.  15. 


People  v.  Wueelee. 

(CO  Cal.,  581.) 
Evidence:  Scientific  hooks. 

Evidence— Reading  from  a  book  on  medical  jurisprudence  not  in- 
troduced IN  evidence  or  proved  to  de  op  standard  authority. — 
On  a  trial  for  murder,  the  district  attorney,  in  his  closing  argument  to 
the  jury,  read,  "as  a  portion  of  his  argument,"  and  against  the  objec- 
tion of  defendant,  various  sections  from  a  book  called  '  •  Browne's  Medical 
Jurisprudence  of  Insanity ; "  the  book  was  not  introduced  in  evidence, 
and  no  testimony  had  been  introduced  to  show  that  it  was  a  standard 
work  of  recognized  authority  on  the  subject  of  insanity ;  held,  error. 

Appeal  from  the  Superior  Court  of  tho  City  and  County  of 
San  Francisco.     Ferral,  J. 

Darioin  dc  Dunphy,  for  appellant. 

A.  L.  Ilavty  attorney-general,  for  respondent. 


192 


AMERICAN  CRIMINAL  REPORTS. 


MclviN'STRY,  J.  This  cause  was  submitted  for  decision  June 
5,  1882. 

Tlie  district  attorney,  in  his  closing  argument  to  the  jury, 
said  he  would  read,  "as  a  portion  of  his  arguniont,"  from  a 
book  called  "Browne's  ^fedical  Jurisprudence  of  Insanity." 
The  bill  of  exceptions  proceeds:  "  No  testimony  had  l)een  in- 
troduced to  show  that  this  was  a  recognized  woric  or  standard 
authority,  or  that  it  was  a  scientiHc  work.  The  defense  ob- 
jected to  said  book  or  any  part  thereof  or  to  any  opinion  of 
said  alleged  writer,  on  the  ground  that  it  had  not  been  estab- 
lished to  bo  a  scientific  work,  or  a  standard  or  recognized 
authority,  and  that  it  was  incompetent.  The  court  overruled 
the  objections,  and  defense  then  and  there  duly  excepted,  and 
the  district  attorney  did  read  from  said  book  various  sections 
thereof,  commenting  upon  and  treating  of  the  subject  of  in- 
sanity, and  sustalnimj  the  prosecntwn^s  theory  of  the  case.'''' 

An  expert  has  sometimes  been  defined  to  be  a  witness  who 
testiiies  to  conclusions  from  facts,  while  an  ordinary  witness 
testifies  only  as  to  facts.  Mr.  Wharton  thinks  this  definition  not 
sufficiently  exact,  since  no  witness  called  to  testify  to  facts 
rejiroduces  them  precisely  as  they  exist,  more  or  less  of  inference 
being  mingled  with  almost  every  detail  of  ordinary  ol)serva- 
tion.  "The  true  distinction  is  this:  the  non-expert  testiiies  as 
to  a,  subject-matter  readil}^  mastered  by  the  adjudicating  tri- 
bunal; the  expert  to  conclusions  outside  of  such  range.  The 
non-expert  gives  the  result  of  a  process  of  reast)ning  familiar 
to  every-day  life ;  the  expert  gives  the  result  of  a  process  of 
reasoning  which  can  be  mastered  only  by  special  scientists." 
Criminal  Evidence,  404.  Whatever  the  exact  distinction,  it 
is  well  settled  that  where  the  object  is  to  ascertain  Avhether  a 
supposed  case  is  to  be  regarded  as  indicating  insanity,  only 
experts  in  insanity  are  to  be  called,  since  only  experts  arc 
competent  to  describe  the  differentia  of  insanity  scientific- 
ally.   Id.,  417,  cases  cited. 

But  the  question  in  the  particular  case,  "  sane  or  insane,"  is  a 
question  of  fact  for  the  jury.  The  expert  is  called  to  assist  the 
jury  in  reaching  a  just  conclusion ;  his  testimony  is  necessarily 
subject  to  the  supervision  of  the  jury.  They  must  determine, 
not  only  whether  the  hypothetical  case  on  .vhich  his  opinion 
is  based  is  the  case  before  them  as  established  by  credible 


PEOPLE  r,  WHEELER. 


193 


testimony,  but  must  consider  the  reasons  ho  lias  given  for 
his  opinions,  and  by  his  whole  testimony  test  his  credibility 
and  llio  correctness  of  his  judgment.  Inasmuch  as  the  cir- 
cumstances on  which  the  jury  are  to  determine  the  weight 
to  be  given  the  opinion  of  an  expert  are  more  numerous  and 
complicat(<l  than  those  by  reference  to  which  they  are  to 
(locido  on  the  consideration  to  be  accorded  to  the  statements 
of  a  witness  with  respect  to  facts,  and  inferences  involved,  if 
any,  Avhicli  are  within  the  reach  of  those  possessed  of  no  spe- 
cial or  scientific  acquirements,  it  follows  that  it  is  peculiarly 
important  that  a  defendant  charged  with  crime  should  be 
"confronted  "  by  the  expert  witnesses  against  him,  and  that  they 
should  be  cross-examined  in  his  presence.  But  where  the 
opinions  of  a  writer  as  to  the  picsenco  or  absence  of  insanitv, 
upon  facts  more  or  less  analogous  to  those  claimed  by  the 
prosecution  or  defense  to  be  established  in  the  case,  are  per- 
mitted to  go  to  the  jury,  the  writer  is  not  sworn  or  cross- 
examined  at  all.  Such  evidence  is  equalh'  objectionable,  whether 
introduced  by  the  pef)ple  or  by  the  defendant.  If  held  admis- 
sible, the  question  of  insanity  may  be  tried,  not  by  the  testi- 
mony, but  upon  excerpts  from  works  presenting  partial  views 
of  variant  and  perha]>s  contradictory  theories.  In  the  case 
before  us,  too,  there  was  no  evi<lence  that  the  work  from  which 
the  district  attorney  read  "  various ''  sections  was  a  standard 
authority  in  the  medical  profession,  or  that  the  author  was  an 
expert. 

Medical  books  are  not  admissible  as  evidence.  The  contrary 
was  at  one  time  held  in  Iowa  and  Alabama.  The  Iowa  de- 
cision {liincman  v.  Woods,  1  G.  Green  Eep.,  445)  was  based 
upon  the  idea  that  inasmuch  as  the  opinions  of  medical  wit- 
nesses are  formed  in  part  upon  the  books  they  may  have  read, 
the  books  themselves  are  "  better  evidence."  A  reference  to 
what  is  said  hereafter  as  to  the  reasons  for  rejecting  such  books 
will  point  out  the  fallacy  on  which  the  conclusion  of  the  loAva 
court  was  based.  In  Bowman  v.  Wooih  it  Avas  conceded  that  the 
admission  of  such  books  is  not  in  conformity  to  the  prevailing 
decisions.  The  Alabama  case  {Stoudenmeier  v.  Williamson,  29 
Ala.,  558)  will  bo  hereinafter  noticed. 

Medical  witnesses,  as  observed  by  Briand,  "  do  not  usurp  the 
functions,  but  servo  to  enlighten  the  conscience  of  the  judge 
Vol.  IV— 13 


194 


AMERICAN  CRIMINAL  REPORTS. 


and  jury."  The  practice  is  to  ask  the  opinion  of  the  expert 
upon  a  h^'potlietical  state  of  facts,  but  not  to  permit  him  to 
quote  from  books  of  authority  in  his  profession  to  fortify  his 
opinion.  Against  this  exclusion  of  -written  authorities  medical 
men  have  protested  very  vehenently.  As  long  ago  as  the  trial 
of  Spencer  Cowper,  Doctor  Crell  remonstrated  with  the  bench 
when  it  was  intimated  that  the  practice  of  reading  from  books 
was  improper.  In  Beclc's  Medical  Jurisprudence  (vol.  2,  p.  903) 
is  a  citation  from  an  article  in  the  Edlnhury  Medical  and  Sur- 
ffiml  Journal,  where  the  editors  say:  "  It  appears  to  us  no  one 
can  follow  this  advice  "  (not  to  read  from  medical  treatises  in 
giving  testimony) "  Avithout  compromising  the  right  and  dignity 
of  his  profession  as  well  as  the  force  of  his  evidence,  for  it 
Avould  not  be  diificult  to  show  that  medical  evidence  is  little 
else  than  a  reference  to  authority."  But  one  of  the  editors  of 
the  Eevision  of  Beck  by  Gilman  shows  (vol.  2,  p.  9-']3)  that  the 
effect  of  the  rule  is  not  to  deprive  parties  of  medical  or  scien- 
tific evidence,  but  that  Tindal's  dictum,  in  CoUicr  v.  St'/nj)son, 
5  C.  &  P.,  7-i,  opened  the  door  Avide  enough  to  satisfy  any  rea- 
sonable man.  "You  may  ask,"  said  tliat  judge,  ''tlicj  Avituoss 
Avhether  in  tlie  course  of  his  reading  he  has  found  this  laid 
down;  you  may  ask  him  his  judgment  and  f/u-  (/roif/,.l^:  <>/  tf, 
Avhich  may,  in  some  degree,  be  founded  upon  books  as  part  of 
his  general  knowledge." 

A  similar  rule  obtains  AA'ith  respect  to  a  Avitness  called  to 
prove  a  foreign  law;  he  should  state,  on  his  respoiisiliility, 
Avhat  the  foreign  law  is,  and  not  read  fragments  of  a  foreign 
code.     Cocl's  V.  Purday,  2  Carr.  &  K.,  209. 

But  while  a  Avitness  cannot  be  permitted  to  read  as  inde- 
pendent proof  extracts  from  books  in  his  department,  he  iiuay 
refresh  his  memory,  Avhen  giving  the  conclusions  arrived  at  in 
his  specialty,  by  turning  to  standard  Avorks.  1  Whart.  L.  Ev., 
438.  And  as  Ave  shall  see  hereafter,  it  AA'ould  seem  to  have  been 
held  in  Wisconsin  that  a  Avitness  haA'ing  cited  scientific  authori- 
ties they  may  be  put  in  e\ddence  to  discredit  him. 

Quotations  from  medical  books  are  not  admissible  as  evi- 
dence Avhen  offered  independently,  or  Avhcn  read  by  witnesses. 
It  foUoAvs  that  counsel  ought  not  to  be  allowed  to  read  such 
to  the  jury;  a  fortiori  Avhen  they  arc  not  proved  to  come 
from  Avorks  of  standard  authority  in  the  profession.    A  gen- 


PEOPLE  t'.  WHEELER. 


195 


eral  liistory  may  be  read  from,  but  this  is  only  to  refresh  the 
mcinorv  of  the  com-t  as  to  something  it  is  supposed  to  know. 
^o,  iin  ler  appropriate  restrictions,  domestic  law  books  are  per- 
mitted to  be  read  to  the  jury.  The  court  can  always  correct 
the  counsel  as  to  liis  law,  or  the  application  of  it.  But  the 
opinions  of  medical  experts  are  in  their  nature  farts  to  be 
estublislied  by  living  witnesses.  They  cannot  be  proved  by 
hearsa\',  alleged  to  come  from  those  not  pi-esent  and  not  even 
sliown  to  be  competent  to  express  scientific  opinions.  Xor  are 
they  established  by  the  mere  statement  of  counsel. 

The  full  report  of  The  Queen  v.  Crouch,  1  Cox's  Cr.  Cases, 
9-t,  is  as  follows : 

'•  The  prisoner  was  indicted  for  the  wilful  murder  of  his  wife, 
and  the  defense  set  up  was  that  of  insanit}'. 

"Clarkson,  for  the  prisoner,  in  his  address  to  the  jury, 
attempted  to  quote,  from  a  work  entitled  '  Cooper's  Surgery,' 
the  author's  opinions  on  the  subject. 

"  Alderson,  B.,  thought  that  ho  was  not  justified  in  doing  so. 

"Clarkson  —  I  quote  it,  my  lord,  as  embodying  the  senti- 
ments of  one  who  has  studied  the  subject,  and  submit  that  it  is 
admissible  in  the  same  way  as  opinions  of  scientific  men  on 
iiiii!!o;.s  appertaining  to  foreign  law  may  be  given  in  evidence. 

"Alderson,  B. —  I  should  not  allow  vou  to  read  a  work  on 
forc'xjii  law.  Any  person  who  was  properly  conversant  with 
it  might  be  examined,  but  then  he  adds  I^is  own  personal 
knowledge  and  exi)erienco  to  the  information  lie  may  have 
derived  from  books.  We  must  have  the  evidence  of  individuals, 
not  their  written  opinions.  "We  should  bo  inundated  Avitli 
books  if  wo  were  to  hold  otherwise. 

"  Clarkson  —  I  shall  prove  the  book  to  be  one  of  high  au- 
thority. 

"  Alderson,  B. —  But  can  that  mend  the  matter?  You  surely 
cannot  contend  that  vou  nuiv  give  the  book  in  evidence,  and  if 
not,  what  right  have  you  to  quote  from  it  in  your  addrc^ss,  and 
do  that  indirectly  which  you  would  not  be  permitted  to  do  in 
the  ordinary  course? 

"Clarkson  —  It  was  certainly  done,  my  lord,  in  JVauf/hten's 

"Alderson,  B. —  And  that  shows  still  more  strongly  the 
necessity  for  j,  stringent  adherence  to  the  rules  laid  down  for 


190 


i\MERICAN  CRIMINAL  REPORTS. 


our  observance.  But  for  the  non-interposition  of  tlie  judge  in 
that  case,  you  -would  not  prol)ably  have  thought  it  necessary 
to  make  this  struggle  noAV." 

Anjtl  in  Reglna  v.  Tai/Ior,  13  Cox's  Cr.  Cases,  T7,  it  was  held: 
"  Cases  cited  in  books  on  medical  jurisprudence  are  not  admis- 
sible even  to  form  part  of  an  address  to  the  jury."  Counsel 
for  defense,  in  addressing  the  jury,  proposed  to  read  from 
Taylor's  Medical  Jurisprudence.  Brett,  J.,  said :  "  Tliis  is  no 
evidence  in  a  court  of  justice.  It  is  a  mere  statement  by  a 
medical  man  of  hearsay  facts  of  cases  at  which  he  was  in  all 
probability  not  present." 

To  the  same  effect  are  the  American  cases,  in  whicli  tlie 
question  is  fully  considered  and  decided.  In  Slate  v.  D'Hr'tcn, 
7  E.  I.,  338,  the  court  said :  "  The  book  offered  to  be  road 
to  the  jury  Avas  not  admissible  as  evidence.  N^o  evidence 
in  the  nature  of  parol  testimony  could  properly  pass  to 
them,  except  under  the  sanction  of  an  oath ;  and  upon  this 
ground  books  of  science  are  excluded,  notwithstanding  the 
opinions  of  scientific  men  that  they  are  books  of  authority  and 
valuable  as  treatises.  Scientific  men  are  permitted  to  give 
their  opinions  as  exi)crts,  because  given  under  oath,  but  tlie 
books  which  they  write  containing  them  are,  for  want  of  such 
oath,  excluded." 

The  suggestion,  that  such  books  may  be  read  "  as  part  of  the 
argument  of  counsel,"  did  not  receive  much  consideration 
from  Chief  Justice  Shaw,  in  AsJncorth  v.  Klttrldgc,  12  Cusli., 
193  {QQ  ]\[ass.).  That  distinguislied  judge  there  said :  "  Tlio 
court  are  of  opinion  that  it  was  not  competent  for  counsel 
for  the  plaintiff,  against  the  objection  of  the  other  side,  to 
read  medical  books  to  the  jury.  .  .  .  AVc  consider  the 
law  to  this  effect  to  be  well  settled,  both  upon  principle  and 
authority.  "When  books  are  thus  offered,  ihoj  arc,  in  <ff<'d, 
used  as  evidence,  and  the  substantial  objection  is  that  they  are 
statements  wanting  tlie  sanction  of  an  oath;  and  the  statement 
thus  ]n'0[)osed  is  made  by  one  not  present  and  not  liable  to 
cross-examination.  If  this  same  autlior  Avcro  cross-examined 
and  asked  to  state  the  grounds  of  liis  opinion,  lie  might  him- 
self alter  or  modify  it,  and  it  would  be  tested  by  a  comparison 
with  the  opinions  of  others.  Medical  Avritcrs,  like  Avriters  in 
other  departments  of  science,  have  their  various  and  conflict- 


PEOPLE  V.  WHEELER. 


197 


Ing  theories,  and  often  sustain  and  defend  them  Avitli  ingenuity. 
But  as  the  whole  range  of  medical  literature  is  not  open  to 
persons  of  common  experience,  a  passage  may  bo  found  in  one 
book  favorable  to  a  particular  opinion,  Avhen,  perhaps,  the  same 
opinion  may  have  been  vigorously  contested,  and,  perhaps, 
triumphantly  overthrown  by  other  medical  writers,  but  autliors 
whose  works  would  not  be  likely  to  be  known  to  counsel  or 
client,  or  to  court  or  jury.  Besides,  medical  science  has  its 
own  nomenclature,  its  technical  terms  and  words  of  art,  and 
also  common  words  used  in  a  peculiar  manner,  distinct  from 
their  received  meaning  in  the  general  use  of  the  language. 
From  these  and  other  causes,  a  person  not  versed  in  nu'dical 
Uterature,  though  having  a  good  knowledge  of  the  general  use 
of  the  English  language,  would  be  in  danger,  without  an  in- 
terpreter, of  misapi)rehcnding  the  true  meaning  of  the  author. 
Whereas,  a  medical  witness  Avould  not  only  give  the  facts  of 
his  opinion,  and  the  grounds  on  which  it  is  formed,  under  the 
sanction  of  his  oath,  l)ut  would  also  state  and  explain  it  in 
language  intelligible  to  men  of  common  experience.  If  it  be 
said  that  lU)  books  should  be  read  except  books  of  good  and 
cstal)lislied  authority,  tlie  dilficulty  at  once  arises  as  to  tho 
question,  wliat  constitutes  'good  authority;'  more  especially 
whether  it  is  a  (piestion  of  competency,  to  be  decided  by  tho 
court,  whether  the  particular  book  shall  bo  received  or  re- 
jected; or  a  question  of  weight  of  testimony,  so  that  any  l)ook 
may  be  read,  leaving  its  weight,  force  and  effect  to  the  jury. 
Either  of  these  altcM-natives  would  be  atteiuled  with  obvious, 
if  not  insuperable,  objections." 

And  in  Vdnimonirinlth  r.  W/'/son,  indicted  for  murder,  1 
(tray,  iVAH,  the  learned  chief  justice  also  said:  ''Opinions  on 
the  subject  of  insanity  cannot  be  laid  before  the  jury  except 
uiider  the  oath  of  persons  skilled  in  such  matters.  "Whether 
stated  in  the  language  of  tho  court  or  of  the  counsel  in  a  former 
case,  or  cited  from  the  works  of  legal  or  medical  writers,  they 
ai'c  still  statements  of  fact  and  must  be  proved  on  oath." 

These  views  are  reafllrmed  in  Washhwnv.  CHddllnj,  8  Gray, 
431,  and  in  Comnwnwealth  v.  Ih'oioi,  121  ]\fass.,  81.  So,  also, 
it  was  held  in  CoDunonwrnlth  r.  Sfitrfh'anf,  117  ^Mass.,  130,  that 
ail  expert  should  not  be  allowed  to  read  extracts  from  a  work 
on  medical  jurisprudence. 


198 


AMERICAN  CRIMINAL  REPORTS. 


J)ida  are  to  be  found  in  the  reports  of  the  courts  of  several  of 
the  states  which,  disconnected  from  the  context,  would  seem  to 
support  the  i)roposition  that  counsel  may  be  permitted  to  read 
from  medical  works  of  established  credit  intlie  profession  "as 
part  of  his  argument."  But  in  one  only  of  the  cases,  so  far 
as  we  have  been  able  to  find,  was  it  decided  that  this  practice 
was  proper,  such  decision  being  necessary  to  the  conclusion 
reached  by  the  court. 

In  Yoe  V.  People^  49  111.,  412,  it  was  said  that  where  the  attor- 
ney for  the  people,  against  the  objection  of  the  prisoner,  read 
copious  extracts  from  medical  works,  the  court  (without  s|)oi'ial 
recpiest  on  the  part  of  the  prisoner)  should  have  instructed  the 
jury  that  such  books  are  not  evidence,  but  theories  simply  of 
medical  men.  Even  if  we  should  accept  this  as  law,  the  judg- 
ment in  the  present  case  must  bo  reversed,  since  the  court  l)e- 
low  did  not  so  instruct  the  jury.  In  Yoe  v.  The  l\'o2ilc,  the 
reading  of  such  books  by  the  attorney  for  the  })eople  'in  tlio 
absence  of  the  instruction  mentioned)  was  held  to  bo  error 
and  tlie  judgment  was  reversed.  In  our  view  the  court  canio 
to  tile  proper  conclusion  —  that  error  had  occurred. 

But  lK)oks  treating  of  insanity  contain  more  than  abstract 
speculations  or  general  expositions  of  the  science  of  niediciiio 
as  applicable  to  mental  diseases.  They  contain  reported  cases 
and  opinions  as  to  the  elfect  to  be  given  to  asserted  facts  in 
determining  the  presence  or  absence  of  insanity;  statements 
of  the  views  and  oi)inions  of  their  writers,  which  partake  of 
the  nature  of  facts  in  the  same  degree  as  do  the  oi)inions  of 
ex))ei't  witnesses  who  are  subject  to  cross-examination.  /A//vvy 
'V.  The  Sf(if(',  40  Ind.,  .510,  was  a  case  in  which  it  was  held  not 
to  be  error  for  the  trial  court  to  ])ermit  counsel  to  read  from  a 
book  purporting  to  be  a  medical  work,  the  court  instructing 
the  jury  "  that  the  extract  was  to  be  regarded  not  in  anywise 
as  evidence,"  etc.  The  objections  to  the  practice  so  clearly 
pointed  out  by  Chief  Justice  Shaw  and  others  do  not  seem  to 
have  occurred  to  the  judges;  and  the  court,  in  Jfanrt/  v.  T/n' 
Stnt<\  supposed  that  any  evil  which  might  arise  from  it  would 
be  overcome  by  the  direction  to  the  jury  to  disregard  the  ex- 
tract as  evidence.  In  the  case  at  bar,  as  wo  liave  seen,  the 
court  below  did  not  so  instruct  the  jury.  It  has  been  held  here 
that  ordinarily  a  judgment  will  not  bo  reversed  because  of  the 


PEOPLE  t'.  WHEELER. 


199 


omission  of  the  trial  court  to  give  a  certain  instruction  unless 
the  instruction  was  requested.  ]3ut  the  rule  certainly  would 
not  bo  a[>i)licable  to  a  case  in  which  counsel  should  be  pei*- 
niitted  to  state  facts  not  in  evidence  to  a  jury,  against  the 
objection  of  the  opposite  party.  See  People  v.  Taylor,  59  Cal., 
64i>.  Here  the  district  attorney  was  permitted  to  read  the 
opinions  of  one  whose  opinions  (even  if  we  assume  the  book  to 
be  of  recognized  authority)  were,  like  the  opinions  of  experts 
upon  tiio  witness  stand,  in  the  nature  of  facts. 

We  do  not  think  Harvey  v.  The  iState  was  well  decided ;  but 
if  it  can  be  considered  law,  it  will  not  justify  an  affirmance  of 
the  judgment  in  the  case  now  before  us.  In  Legg  v.  DraJce,  L  Ohio 
St.,  ii5i(»,  the  bill  of  exceptions  did  not  show  that  the  passage 
from  Youutt's  work  on  "  Veterinary  Surgery,"  which  counsel 
wa^  prevented  by  the  court  from  reading  to  the  jury,  had  any 
relevancy  to  the  cause  on  trial.  The  action  of  the  court 
below  in  refusing  to  permit  it  to  bo  read  was  sustained  for  this 
reason;  as  if  the  supreme  court  had  said:  "Assuming  that 
passages  from  such  works  may  properly  be  read,  they  should 
at  least  have  some  bearing  on  the  issue  being  tried."  V/hat  is 
said  in  the  opinion  of  the  ])roi)riety  of  the  practice  is  mere 
Jtduiii  ()).  2S9).  The  bill  of  exceptions  before  us  shows  that 
the  sections  read  by  the  district  attorney  to  the  jury,  from 
Ih'owne's  woi'k,  were  relevant.  He  read  "various  sections 
theivof,  commenting  upon  and  treating  of  the  subject  of  in- 
sanity, and  sustaining  th.j  prosecution's  theory  of  the  case.''' 
Moreover,  in  Legg  v.  Drake,  the  court  only  said:  "Although 
unlimited  license  in  range  and  extent  is  not  allowed  to  counsel 
in  thcii'  a(l<lresses  to  the  court  and  jury,  yet  no  pertinent  and 
logitiinate  process  of  argumentation,  within  the  appropriate 
time  allowed,  should  be  restricted  or  prohibited.  And  it  is  not 
to  be  denied,  that  a  pertinent  quotation  or  extract  from  a  work 
on  science  or  art,  as  well  uj  from  a  classical,  historical,  or  other 
publication,  nuiy,  by  Avay  of  argument  or  illustration,  be  not 
only  admissible,  but  sometimes  highly  propei-.  ...  It 
would  be  an  abuse  of  this  privilege,  however,  to  maJce  it  the 
pretense  of  getting  imjn'oper  matter  before  the  jury  as  evidence 
in  the  cause.''^  A  pertinent  quotation,  used  by  Avay  of  illustra- 
tion, is  a  very  different  thing  from  a  report  of  facts  connected 
with  a  particular  case,  and  the  opinion  of  an  author  thereon 


200 


AMERICAN  CRIMINAL  REPORTS. 


that  they  did  not  indicate  or  establish  insanity;  a  different 
thing  from  the  reading  the  opinion  of  a  medical  writer  as 
to  the  effect  of  particular  facts  upon  the  determination  of  the 
question  of  insanity.  Such  must  be  presumed  to  have  been 
the  nature  of  the  matters  read  by  the  district  attorney  in  the 
present  case,  since  they  sustained  the  prosecution's  theory  of 
"the  case"  —  this  case.  The  ruling  in  Wcuie  v.  Be  Wltt^^o 
Texas,  401,  was  based  upon  a  similar  bill  of  exceptions  to  that 
before  the  Ohio  court,  in  Le<jg  v.  D/'al'c,  and  was  to  the  same 
etfect.  In  Clti/  of  Iil_pon  v.  Bettel,  30  Wis.,  G19,  the  bill 
of  exceptions  did  not  show  for  Avhat  purpose  a  certain  treatise 
on  surgery  had  been  admitted.  JS'oh  constat,  said  the  court, 
but  a  medical  expert  had  stated  that  the  treatise  sustained  his 
conclusion,  and  the  book  was  admitted  as  evidence  in  the  nature 
of  impeaching  testimony,  to  show  that  the  witness  was  mis- 
taken. 

Mr.  Bishop,  in  liis  work  on  Criminal  Procedure,  section  1100, 
says :  "  An  expert  may  testify  to  what  lie  has  learned,  not 
merely  from  personal  experience  and  observation,  but  also  fi-om 
books,  and  may  give  an  opinion  derived  from  reading  and 
study  alone.  But  it  does  not  follow  that  the  books  tlieniselves 
are  evidence.  AVe  have  seen  that  the  law  of  the  case  should 
be  given  to  the  jury  by  the  judge  and  not  through  law  books; 
because  the  books  state  the  law  abstractly,  wliile  the  jury  are 
to  be  instructed  upon  the  rules  governing  tlie  particular  facts. 
For  the  like  reason  it  is  the  hctte/'  dudi'lne  that  no  books  of  sci- 
ence, or  other  book  of  the  sort,  however  high  or  well  attcstiid 
n  ■  i  .  'ority,  should  be  submitted  to  the  jury.  Yet  c(]ually  in 
t  e  y'  '"■  charge  to  the  jury,  and  in  the  testimony  of  cx- 
i'f- •■..-!!.  xr'{  oven  in  the  arguments  of  counsel,  passages  from 
tsicd-  ■-(  ol's,  explained  and  applied  to  the  case  in  contro- 
versy, are,  under  limitations  varying  in  some  degree  in  our  dif- 
ferent courts,  pei'mitted  to  be  read." 

We  need  not  here  pause  to  inquire  whether,  in  view  of  tiio 
clause  in  our  constitution  Avhich  prohibits  any  cliargo  as  to 
facts,  a  California  judge  would  ijo  pennitted  to  determine  what 
books  are  "standard  authorities"  in  tlie  medical  proFossion; 
to  read  from  such,  and  to  explain  and  apply  tlieir  contents. 
Witli  respect  to  the  statement  that  passages  from  standard 
books  may  be  read  by  witnesses  and  by  them  explained  and 


PEOPLE  V.  WHEELER. 


201 


applied,  "  under  limitations  varying  in  some  degree,"  the  lan- 
guage employed  by  the  very  al)le  writer  indicates  how  difficult 
he  found  it  to  derive  any  definite  rule  from  the  instances 
■\vhcrc  such  practice  had  a]>]iai*ently  been  permitted.  The  cases 
cited  by  Mr.  Bishop  are  T/ie  State  v.  Sartor,  2  Strobh.,  GO,  and 
Merlle  v.  The  State,  37  Ala.,  139.  In  the  first  it  was  simply 
held  that  although  an  indictment  for  obstructing  a  highway 
was  at  common  law,  it  was  permissible  for  the  state  solicitor  to 
refer  to  the  public  statutes,  not  to  give  character  to  the  offense 
as  aija'nist  the  datute,  but  to  show  what  were  ])ublic  Avays.  37 
Alabama,  139,  is  based  entirely  on  Stondemneler  v.  Wdliamfion, 
29  Ala.,  uGO,  in  which  the  question  considered  was  not  whether 
an  expert  coidd  read  from  medical  works,  but  whether  such 
boolvs  could  themselves  be  introduced  as  evidence.  In  the 
opinion  in  the  case  last  named  the  only  English  cases  cited  are 
Collier  V.  Simj)so)i,  sujora,  and  Attorney-General  v.  The  Glass 
Plate  Co7nj)ani/,  1  Anstr.,  39. 

Of  these  the  first  is  directly  adverse  to  the  proposition  that 
a  witness  can  be  allowed  to  read  from  scientific  treatises;  the 
secoid,  which  holds  that  parol  evidence  is  not  admissible  to 
explain  the  meaning  of  a  Avord  used  in  an  act  of  parliament, 
is  admitted  to  have  no  bearing  upon  the  question  under  con- 
sideration. It  is  further  admitted  by  the  learned  Alabama 
judge  that  Greenleaf  (vol.  1,  sec.  410,  note  5)  is  an  authority 
against  the  admissibility  of  the  evidence.  Xeither  the  Mas- 
sacluisetts  nor  lihodo  Island  cases  are  mentioned.  The  Amer- 
ican decisions  by  him  referred  to  arc  Boicman  v.  Woods, 
already  commented  on;  LMnhuj  v.  The  State  of  Wheon^ln,  1 
Chand.,  178,  spoken  of  as  "a  very  loose  opinion,"  and  Green  v. 
CornweU,  1  City  Hall  Eccoi'der,  l-t.  In  the  last,  Avhich  Avas  a 
trial  by  jury  in  the  mayors  court  of  Kcw  York  city,  a  table 
from  IJlunt's  Coast  Pilot  and  Bowditch's  Xavigator  Avas  re- 
ceived to  proA'e  the  condition  of  the  tide  at  a  certain  time  and 
place,  the  presiding  judges  saying  "the  testimony  is  of  equal 
A'alidity  Avith  the  almanac."  But,  clearly,  Stoadeiiweier  v. 
Williamson  is  not  authority  to  the  point  that  a  Avitncss  may 
fortify  his  opinion  as  exi)ert  by  reading  from  books,  since  that 
question  Avas  not  decided  in  that  case.  There  an  extract  from 
a  medical  book  Avas  itself  admitted  in  evidence,  and,  as  Mr. 
Bishop  says,  it  is  noAV  Avell  settled  that  the  books  themselves,  or 
extracts  from  them,  are  not  admissible  as  evidence. 


202 


AMERICAN  CRIMINAL  REPORTS. 


r 


If  the  last  clause  of  tlie  above  nitation  from  Bishop  is  to  be 
construed  as  implying  that  counsel  can  read  to  a  jury  extracts 
from  medical  works,  and  explain  them,  the  great  weight  of 
authority  is  decidedly  against  so  dangerous  a  license. 

In  Merlde  v.  The  State,  supra,  the  book  read  from  by  the 
prosecuting  attorney  was  first  proved  by  the  testimony  of  a 
practicing  physician  to  be  a  book  "recognized  by  the  medical 
profession  as  good  authority  on  all  subjects  therein  treated  of." 
The  prosecuting  attorney  did  not  read  from  a  book  not  intro- 
duced in  evidence  nor  proved  to  be  authoritative,  as  was  done 
in  the  case  now  before  this  court.  In  Mcrkle  v.  The  State,  the 
Alabama  court,  solely  on  authority  of  Stoiulenmekr  v.  Will- 
iamson, held  that  it  was  proper  to  receive  such  a  book  in  evi- 
dence. This  ruling  is  in  conflict  with  the  established  law  on 
the  subject,  as  stated  by  Mr.  Bishop  himself.  As  to  the  otlicr 
cases  referred  to  in  the  note  to  the  clause  quoted  from  Bisliop, 
some  have  been  hereinbefore  mentioned  and  commented  upon, 
others  have  no  relevancy  to  the  immediate  question.  JlcMath 
V.  The  State,  55  Ga.,  303,  only  holds  that,  under  the  supervisidu 
and  subject  to  the  correction  of  the  court,  counsel  may  read 
from  books  treating  of  the  law  of  this  countrv. 

Our  conclusion  is  that  the  court  below  erred  in  pei'mittiiig 
the  district  attorney,  in  his  closing  argument  to  the  jury,  in  the 
absence  of  any  evidence  that  the  work  was  of  reci^gnized  au- 
thority in  the  medical  profession,  and  against  the  objection  of 
counsel  for  the  defendant,  to  read  from  Browne's  ^fedical  Ju- 
risprudence of  Insanity  "  various  sections  treating  of  tlie  sub- 
ject of  insanity,  and  sustaining  the  prosecution's  theory  of  the 
case." 

Judgment  and  order  denying  new  trial  reversed,  and  cause 
remanded  for  a  new  trial. 

t 

Ross,  J.,  concurred. 

McKek,  J.,  concurring. 

Books  of  science  or  art  oxe  prim  a  facie  evixlence  of  facts  of 
general  notoriety  and  interest.  But  the  court  beloAV  eri-od  in 
permitting  the  district  attorney,  against  the  objection  ol'  the 
defendant's  counsel,  to  read  to  the  jury  extracts,  "  commenting 
upon  and  treating  of  the  subject  of  insanity,"  from  a  book 
which  was  not  proved  to  be  a  recognized  or  scientiiic  work  or 


D. 


THE  STATE  v.  VANDERPOOL.  203 

standard  autliority, — was  not  offered  in  evidence  in  the  case,  nor 
made  part  of  the  testimony  of  any  of  the  witnesses  examined ; 
and  on  tiuit  ground,  I  concur  in  the  judgment  of  reversal. 


TnE  State  v.  Vanderpool. 

(30  Oliio  St.,  273.) 

Extradition  :  Construction  of  treaty. 

1.  Prisoner  can  be  tried  only  for  the  offense  for  which  EXTRAorrED. 

A  person  extradited  under  the  provitsions  of  the  treaty  of  1843,  between 
the  United  States  ajid  Great  Britain,  tried,  convicted  and  sentenced  for 
the  crime  uixin  which  ho  was  extradited,  cannot  be  detained  in  custody 
and  prosecuted  for  a  different  crime  than  the  one  specilied  in  tlie  war- 
rant of  extratlition. 

2.  Construction  of  treaty. —  Under  the  constitution  of  the  United  States, 

the  ju-ovisions  of  this  treaty  are  part  of  the  law  of  tlie  land,  enforceable 
by  the  judicial  tribunals  in  behalf  of  a  person  bo  detained  and  prose- 
cuted. 

]\[()tion  for  leave  to  file  a  bill  of  exceptions  to  the  judgment 
of  tlie  court  of  common  pleas  of  Belmont  county. 

I).  A.  JFoUhujfiworth,  attorney -general,  and  A.  II.  Mitchell^ 
prosecuting  attorney,  for  tlie  state. 
6'.  II.  Ulackhui'H,  for  the  defendant. 

Johnson,  C.  J.  The  demurrer  to  the  plea  presents  the  ques- 
tion whether  the  facts  stated  exemi)ted  the  accused  from  pros- 
ecution in  lielmont  county  until  a  reasonable  time  has  elapsed 
after  the  expiration  of  their  sentence  for  the  crime  committed 
in  lUitlcr  county.  The  state  had  obtained  possession  of  the 
accused  from  the  authorities  of  Canada,  under  the  provisions 
of  the  Ashburton^  treaty,  for  trial  in  Ikitler  county.  They 
were  there  tried,  convicted  and  sentenced  for  the  crime  u])on 
which  they  were  extradited.  Before  the  expiration  of  this 
sentence,  the  state  souglit  to  place  them  on  trial  for  another 
criuH?,  charged  to  have  been  committed  before  extradition  in 
Bohnont  county,  the  latter  crime  being  one  for  which  the 
accused  might  have  been  extradited. 

The  court  of  common  pleas  held  that  proceedings  on  the 
indictment  in  Belmont  county  must  be  susiiended  until  a  rea- 


204 


AMERICAN  lRIMINAL  REPORTS. 


sonable  time  after  the  expiiation  of  the  sentence  in  tlio  Cutler 
county  case;  or,  in  otlier  words,  that  the  state,  having  obtained 
jiossession  of  tlie  criminals  under  the  extradition  treat}',  could 
not  detain  them  in  custody  and  put  them  on  trial  for  another 
crime.  It  was  also  held  that  the  obligations  of  this  treaty 
created  a  personal  right  in  favor  of  the  person  extradiled, 
which  he  could  plead  in  suspension  of  a  ])rosccution  for  such 
other  crime. 

By  the  tenth  article  of  the  Ashburton  treaty  it  Avas  "  agreed 
that  the  United  States  and  her  Brittanic  ;>[ajcsty  shall,  ui)on 
mutual  requisitions  by  them  or  their  ministers  or  authorities, 
respectively  made,  deliver  up  to  justice  all  persons  who,  being 
chargect  with  the  crime  of  murder,  or  with  assault  with  intent 
to  commit  murder,  or  piracy,  or  arson,  or  robbery,  or  forgery, 
or  the  utterance  of  forged  paper,  committed  within  the  juris- 
diction of  either,  shall  seek  an  asylum,  or  be  found  within  tlie 
territories  of  the  other:  Provided,  that  this  shall  oidy  be  done 
upon  such  evidence  of  criminality  as,  according  to  the  laws  of 
the  place  where  the  fugitive  or  person  so  charged  shall  bo  iouud, 
would  justify  his  apprehension  and  commitment  for  trial  if  the 
crime  or  offense  had  been  there  coinmitted;  and  the  res[)ectivo 
judges  and  other  magistrates  of  the  two  governments  shall 
have  power,  jurisdiction  and  authority,  upon  comi)laiut  mailo 
under  oath,  to  issue  a  warrant  for  the  ap])rehension  of  the 
fugitive,  or  person  so  charged,  that  he  may  bo  brought  before 
such  judges  or  other  magistrates,  respectively,  to  the  end  th;it 
the  evidence  of  criminality  may  be  heard  and  considered;  and 
if,  on  such  hearing,  the  evidence  be  deemed  sulliciont  to  sustain 
the  charge,  it  shall  be  the  duty  of  the  examining  judge  or 
magistrate  to  certify  the  same  to  the  proper  executive  autlior- 
ity,  that  a  warrant  may  issue  for  the  surrender  of  such  fugi- 
tives. The  expense  of  such  apprehension  and  delivery  shall 
be  borne  and  defrayed  by  the  party  who  nuikcs  the  retpiisitiou 
and  receives  the  fugitive." 

Independent  of  treaty  stipulations,  the  obligations  to  sur- 
render fugitives  from  justice  was  of  an  imperfect  nature.  It 
rested  on  comity  between  states.  Each  determined  for  itself 
the  extent  of  this  obligation,  and  the  nature  of  the  crime  and 
mode  of  surrender. 

Prior  to,  as  well  as  since,  the  treaty  of  1842,  it  has  been  the 


THE  STATE  v.  VANDERPOOL. 


205 


settled  policy  of  both  the  United  States  and  G  rcat  TJritain  to 
furnish  an  asylnm  for  persons  charged  in  other  states  witli 
religious  or  political  offenses.  Eacli  zealously  vied  with  the 
otlicr  in  maintaining  this  right  of  asylum.  Hence  it  was  that 
in  the  treaty  of  1842  it  was  expressly'  limited  to  seven  well- 
defined  crimes.  Hence  it  was,  al^,  that  the  riglit  to  demand 
a  surrender  in  the  specific  cases  named  Avas  so  carefully 
guarded.  The  accused  was  protected  in  his  asylum,  unless  the 
authorities  there  should  find  him  guilty  of  one  of  the  crimes 
specified  in  the  treaty. 

By  the  terms  of  the  treaty,  the  judge  or  other  magistrate 
of  the  government  upon  whom  the  demand  was  made,  is  to 
hear  and  determine,  accoi'ding  to  the  laws  of  his  own  countrj-, 
whether  there  is  a  case  made,  and,  if  so,  to  report  to  the  proper 
executive  authority,  Avho  shall  issue  a  warrant  for  his  extra- 
dition. 

The  right  of  the  United  States  to  demand  the  surrender  of 
fugitives  from  justice  found  Avithin  the  British  dominions  is 
purel}^  conventional;  hence  the  correctness  of  the  ruling  of  the 
court  below  depends  on  the  true  construction  of  the  treaty, 
and,  also,  how  far  the  judicial  tribunals  of  the  demanding  gov- 
ernment arc  required  to  give  effect  to  treaty  stipulations, 
especially  how  far  the  judicial  tribunals,  federal  and  state,  can 
take  cognizance  of  and  enforce  the  ])rovisions  of  the  treaty 
upon  the  i»lea  of  the  person  surrendered. 

In  United  States  v.  Caldwell,  8  Blatclif.,  131,  and  United 
Stages  V.  Lawrence,  13  Blatclif.,  295,  Judge  Benedict  held  that 
Avhile  the  abuse  of  the  provisions  of  the  treaty,  or  want  of  good 
faith  by  the  demanding  government,  might  furnish  cause  of 
complaint  by  the  surrendering  government,  yet  such  complaints 
do  not  form  a  proper  subject  for  judicial  cognizance.  See, 
also,  Adriance  v.  Lxigrave,  59  N.  Y.,  110.  Other  cases  to  the 
same  effect  might  be  cited,  but  as  the  decisions  and  the  views 
of  writers  upon  the  subject  differ  so  widely,  Ave  are  free  to  de- 
termine the  questions  from  the  terms  of  the  treaty  itself, 
guided  by  the  Avell-established  rules  for  the  construction  of 
such  instruments. 

By  section  2,  article  C,  of  the  constitution  of  the  United 
States,  "  This  constitution,  and  the  laAvs  of  the  United  States, 
made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall 


200 


AMERICAN  CRIMINAL  P.EPORTS. 


le  made,  muJer  the  author tfy  of  the  United  States,  .shrdl  he  tie 
supi'eme  hue  of  the  land,  and  the  judges  of  every  atafe  nhall  le 
lot/nd  thereby,  anything  in  the  constitution  and  laws  of  any 
state  to  the  contrary  notwitlistanding." 

This  treaty  is,  therefore,  the  law  of  the  land,  and  the  judges 
of  every  state  are  as  much  bound  thereby  as  they  arc  l)y  the 
constitution  and  -iws  of  the  fedci'al  or  state  government.  It 
is,  tlierefore,  tlie  imperative  duty  of  the  judicial  ti-ibiiiiiil;;  of 
Ohio  to  take  cognizance  of  tlie  rights  of  persons  arising  under 
a  treaty  to  tlie  same  extent  as  if  they  arose  under  a  statute  of 
the  state  itself. 

"While  authority  is  not  wanting  to  support  the  dociHJons  in 
CaldiceWs  Case  and  Zawrence's  Case,  sujjra,  yet  we  submit  that 
these  decisions  ignore  the  provisions  of  the  federal  constitution 
just  cited. 

Again,  if  it  be  true  that  the  abuse  of  extradition  proceed- 
ings, iradcr  this  treaty,  is  an  olTonse  for  whicli  the  surrciulor- 
ing  government  alone  can  complain,  the  remedy  is  totally 
inadequate,  and  the  treaty  itself  may  be  rendered  nugatoi'v. 

When,  as  in  the  present  case,  tlie  surrender  is  to  one  of  tlie 
states  of  the  United  States,  the  prisoner '  passes  be  vond  the 
control  of  the  federal  government  and  into  that  of  Lliis  state. 
Upon  complaint  made  by  the  British  government  to  the  fed- 
ei'al  government  of  an  abuse,  by  the  state  of  Ohio,  of  the 
process  under  the  treaty,  the  federal  government  could  only 
answer,  as  it  has  done  in  many  instances  heretofore,  that,  under 
our  system  of  state  and  federal  government,  the  latter  is 
powerless  to  control  the  state  authorities.  If  the  riglit  under 
the  treaty  to  be  protected  from  other  prosecutions  can  only  be 
enforced  by  the  surrendering  nation  by  protest  or  otherwise 
against  the  one  making  the  demand,  that  is,  if  it  is  a  question 
not  cognizable  in  the  courts,  it  is  of  little  value  under  our 
system  of  federal  and  state  governments. 

After  the  United  States  has  secured  the  surrender,  for  an 
offense  against  state  law,  the  accused  is  delivered  to  the  au- 
thorities of  the  state  for  prosecution,  Avhen  all  federal  con- 
trol is  lost.  If  the  accused  is  of  little  or  no  political  influence, 
the  difficulty  of  giving  him  that  protection  which  was  intended 
by  the  treaty  is  so  great,  if  the  courts  cannot  intervene,  that  it 
is  of  little  or  no  value  as  a  protection  to  the  person  extradited. 


THE  STATE  v.  VANDERPOOL. 


207 


TTo  conclude,  therefore,  and  both  reason  and  the  weight  of 
autliority  support  tliis  view,  that  the  judges  of  this  state  are 
bound  by  tlie  provisions  of  this  treaty,  and  that  if  it  secures 
to  llio  person  extradited  exemption  from  trial  for  crimes  and 
otfcnsos  other  than  those  specified  in  the  warrant  of  extradi- 
tion, it  is  the  duty  of  the  courts  to  take  cognizance  of  his  plea. 
]u)sf(-i'  V.  Nellson,  2  Pet.,  253;  CummomoeaJth  v.  Haives,  \^^ 
Bush,  700;  Winslow'a  Case,  10  Am.  Law  Rev.,  G17;  llnlied 
States  V.  Watts,  8  Sawyer,  370;  14  Fed.  Rep.,  130;  North  Am. 
Eev.,  :May,  1S83,  page  497. 

II.  As  to  the  right  of  the  demanding  government  to  hold  the 
accused  and  prosecute  him  for  a  different  crime  or  offense. 

This  treaty  is  to  bo  subject  to  the  same  rules  for  ascertaining 
the  intention  of  the  contracting  parties  as  in  case  of  other 
contracts.  It  enumerates  seven  well-defined  crimes  for  which 
extradition  may  be  had.  It  thereby  excludes  all  non-enumer- 
ated crimes  and  offenses,  whether  of  a  political  or  other  char- 
acter, and  leaves  the  surrender  in  such  other  cases  to  the 
disci-etion  of  the  government  where  he  is  found.  It  limits  the 
duty  of  surrender  to  those  cases  specified  in  the  treaty,  in 
whicli  the  evidence  of  guilt  is  sufficient,  according  to  the  laws 
of  tlio  nation  where  the  fugitive  or  person  charged  is  found,  to 
justify  his  committal  for  trial,  if  the  act  charged  had  been 
committed  there.  The  right  of  the  nation  where  the  fugitive 
is  found  to  first  hear  and  determine  the  case,  and  to  decide 
upon  the  evidence  whether,  according  to  its  own  laws,  the  crime 
cliarged  has  been  committed,  i.  e.,  whether  a  case  for  com- 
mittal has  been  made  out,  secures  to  the  government  upon 
which  the  demand  has  been  made  the  right  to  determine  for 
itself  whether  the  demand  shall  be  complied  with.  This  nec- 
essarily excludes  the  idea  that  the  demanding  government  can 
decide  for  itself  to  trj"-  the  prisoner,  after  obtaining  custody, 
for  other  crimes ;  otherwise  the  purpose  of  the  treaty  is  defeated. 
If  the  demanding  government  can  so  decide,  the  whole  inten- 
tion of  the  treaty  could  be  defeated,  and  the  right  of  asylum, 
which  has  been  the  boast  of  both  governments,  Avould  depend 
entirely  on  the  action  of  the  demanding  government. 

To  extradite  under  the  treaty  for  an  offense  named  therein, 
and  then  to  retain  the  prisoner  for  a  non-extraditable  offense, 
or  for  a  different  one,  though  extraditable,  u])on  which  no 


' 


203 


AMERICAN  CRIMINAL  REPORTS. 


hearing  had  been  had  as  provided  in  the  treaty,  would  ho,  not 
onl}'  a  breach  of  good  faith  by  the  demanding  government, 
Init  a  viohition  of  the  right  of  asylmn  in  favor  of  the  accused 
guai'autied  to  liim  by  tlie  treaty.  The  sole  object  of  tlie  treaty 
Avas  to  enable  each  government  to  protect  its  citizens  and 
inhabitants  in  the  right  of  asylum,  except  they  come  within 
the  provisions  named.  The  legislatiort  of  both  governments 
clearly  supports  this  construction. 

Ey  tlio  act  of  congress  of  1841,  United  States  Ecvised  Stat- 
utes, section  5273,  "  It  shall  be  lawful  for  the  secretary  of  state, 
under  his  hand  and  seal  of  office,  to  order  tlie  person  so  com- 
mitted to  be  delivered  to  such  person  as  shall  be  authorized  in 
the  name  and  behalf  of  such  foreign  government,  to  he  tried 
for  the  crime  of  which  such  j^cfsoii  shall  he  so  accused.^^ 

Again,  by  section  5275,  "Whenever  any  person  is  delivered 
by  a  foreign  government  and  brought  into  the  United  States 
and  tried  for  any  crime  of  which  he  is  duly  accused,"  it  is  the 
duty  of  the  president  to  take  proper  measures  for  his  "  trans- 
portation and  safe-keeping  until  the  conclusion  of  his  trial,  for 
the  crimes  or  offenses  specified  in  the  warrant  of  extriidition, 
and  until  his  final  discharge  from  custody  or  imprisonment, 
for  or  on  account  of  such  crimes  or  offenses,  and  for  a  reason- 
able time  thereafter,  and  may  emplo\"  such  porti(jn  of  the  land 
or  naval  fore.  A  the  United  States  or  of  the  militia  thereof  as 
may  be  necessary  for  the  safe-keeping  and  protoctio:i  of  the 
accused." 

In  like  manner,  the  British  parliament,  in  1843,  for  tlie  pur- 
pose of  carrying  into  effect  this  treaty,  enacted  tliat  the  i)ers()n 
to  be  extradited  should  be  delivered  to  the  person  authorizcnl 
by  the  United  States  to  receive  him,  "to  be  tried  for  the  crime 
of  which  such  person  sliall  be  accused." 

While  legislative  interi)ret'ition  of  statutes  is  not  conclusive 
upon  the  courts,  yet  in  the  case  of  a  treaty,  which  is  in  its 
nature  a  contract  between  nations,  enactments  lilco  tliese  by 
the  high  contracting  parties  ai'o  of  persuasive  power  in  the 
construction  of  the  treaty. 

The  ri^ht  of  the  state  of  Ohio  over  the  accused,  who  had 
sought  an  asylum  in  Canada,  is  derived  from  the  provisions, 
express  or  implied,  of  the  treaty  of  1842. 

In  view  of  the  provisions  of  this  treaty,  the  safeguards 


THE  STATE  v.  VANDERPOOL. 


209 


thci'oin  provided  against  the  infringement  of  the  right  of 
asyhun  save  in  the  specified  cases,  and  the  legislation  by  both 
goveiMunents  to  carry  out  those  provisions,  we  think  it  clear 
tlijit  the  court  below  did  not  err  in  refusing  to  put  the  accused 
on  trial  for  a  crime  for  Avhich  they  wei'e  not  extradited. 

In  the  correspondence  bstwccn  the  United  States  and  Great 
Britain,  which  took  phice  in  1SG7,  growing  out  of  the  refusal 
of  tlie  latter  to  surrender  AV^inslow,  except  upon  a  stipulation  by 
the  former  that  he  should  not  be  tried  for  another  offense,  the 
conflicting  views  of  the  two  governments  are  stated.  Winslow 
had  been  domanrled  as  a  fugitive,  charged  Avith  forgery.  Great 
Britain  refused  to  deliver  him  unless  the  United  States  would 
stipnlato  that  he  should  not  bo  tried  except  for  the  crime 
cliarged.  This  was  refused,  and  an  extended  correspondence 
wiis  the  result.  Finally  the  British  government,  as  a  tem- 
porary measure,  and  until  a  now  treaty  was  made,  suspended 
its  claim  to  require  such  a  stipulation. 

Time  will  not  permit  an  analysis  of  the  claims  of  the  two 
governments.  It  is  suflicient  to  say  that  it  discloses  a  con- 
trariety of  views  by  eminent  statesmen  and  publicists  upon  the 
question  at  issue,  and  that  the  refusal  by  the  United  States 
to  ma  Ice  the  stipulation  demanded  was  based  chiefly  on  the 
ground  tliat  the  demand  was  unusual,  and  was  a  reflection  upon 
our  government,  after  a  successful  execution  of  the  treaty  for 
nearly  forty  years  without  such  a  stipulation.  If  it  be  con- 
cedi'd  tluit  the  United  States  asserted  the  right  to  retain  an 
extradited  prisoner  and  try  him  for  another  crime,  that  claim 
is  not  conclusive  upon  the  courts.  Nothing  was  then  settled  as 
to  tlie  true  construction  of  the  treaty. 

If,  as  we  hold,  the  question  is  one  of  personal  right  under 
the  treaty,  as  well  as  of  international  law,  it  follows  that  the 
courts  can  hear  and  determine  sudi  right  when  it  is  invaded. 

Much  more  miglit  be  said  in  support  of  our  conclusion,  but 
we  content  ourselves  witli  a  reference  to  the  following  de- 
cisions and  discussions  on  the  subject :  (Jominou  tnodlth  v.  Hawes^ 
13  Bush,  (;i»7;  United  iStateii  v.  WtdtH,  14  Fed.  Uei).,  130;  Letter 
of  Wm.  Beach  Lawrence  on  "Extradition,"  10  Albany  Law  J., 
:52!»;  North  Am.  llev..  May,  18S3,  i)age  407,  title  "  Extradition;" 
Whart.  Crim.  Plead,  tfc  I'l-ac,  ijjj  :iS-57.  and  cases  note<l;  'ilarir 
foril  i\  Sta.t,\  10  Texas,  <;-J7;  Mutter  of  (\ihiioh.  47  Mich.,  481; 
VuL.  IV  -  14 


210 


AMERICAN  CRBUNAL  REPORTS. 


Spear  on  Extradition,  ch.  4,  pp.  G5-74;  10  Am,  Law  Rev.,  G17; 
Compton,  Ault  c&  Co.  v.  Wilder,  40  Ohio  St.,  130. 

Leave  refused. 

Note. — We  think  the  reasoning  of  the  court  in  the  above  case,  upon  its 
facts,  is  unanswerable.  Tlie  same  may  be  said  of  Judge  Aclieson's  decision 
in  In  re  Miller,  post,  for  it  would  seem  that  under  the  facts  in  that  case  the 
return  of  the  wai'den  of  the  penitentiary  to  the  writ,  setting  up  an  order  of 
commitment  of  a  court  of  competent  jurisdiction,  was  all  that  was  nccos- 
sary.  It  is  to  be  regretted  that  there  is  so  much  conflict  in  the  decisions  on 
a  question  of  this  nature.  Until  the  question  is  Anally  and  autlKnutativcly 
settled  each  case  must  bo  governed  to  a  greater  or  less  degree  ui)on  its  own 
peculiar  facts.  It  will  not  do  to  say  that  "  extradition  treaties  ai'o  not  made 
in  the  interest  of  fugitive  criminals,"  for  the  same  might  be  said  of  all  con- 
stitutional provisions.  No  mutter  how  atrocious  the  crime  charged  against 
a  man,  the  courts  see  to  it  that,  when  arraigned  for  trial,  ho  has  the  full 
measure  of  the  humane  protection  of  the  law,  until,  on  a  fair  trial,  he  has 
been  duly  convicted.  It  cannot  be  the  proper  construction  of  treaty  pro- 
visions that  an  abuse  of  extratlition  proceedings  is  an  offense  for  which  the 
surrendering  government  alone  can  complain.  All  treaties  mode  under  tlio 
authority  of  the  United  States  are  part  of  the  law  of  the  land.  They  are 
made  such  by  the  constitution  of  the  United  States.  Tlie  law  of  the  land, 
then,  is  as  much  for  the  benefit  of  the  person  who  claims  any  riglit,  privi 
lege  or  imumnity  under  treaty  provisions  as  it  is  for  the  beneiit  of  the 
parties  to  it.  It  follows,  therefore,  that  the  learned  judge  who  wrote  the 
decision  in  State  v.  Vaiiderpool  simply  obeyed  the  mandate  of  the  constitu- 
tion in  giving  force  and  effect  to  the  treaty  provisions  in  favor  of  the  extra- 
dited defendant. 

Judgo  Hoffuian  in  United  States  v.  Watts,  14  Fed.  Rep.,  loO,  and  tlie  su- 
preme court  of  Kentucky  in  Commonwealth  v.  Haitrs,  13  Bush,  C!)7,  have 
held  that  an  extradited  person,  under  the  treaty  with  Great  Britain,  cannot 
be  tried  for  any  offense  other  than  extradition  crimes. 

In  1)1  re  Miller,  23  Fed.  Rep.,  'd'i,  the  petitioner  wa.s  convicted  of  burglary  in 
the  court  of  oyer  and  terminer.  Clarion  county,  Pennsylvania,  and  sciiti  lucd 
to  undergo  imprisonment  for  seven  years.  After  he  entered  uiion  liis 
term  he  escaped  from  the  penitentiary  and  lied  to  Canada.  Burglary  not 
being  an  extradition  crime,  informations  were  made  in  said  county,  chorg- 
ing  him  with  robbery  and  assaidt  with  intent  to  connnit  nmrder,  and  under 
extradition  proceedings  had  on  these  cluirges,  he  w;u»  surrendered  liy  tlio 
Canadian  government  and  taken  1  Kick  to  the  penitentiary.  Bills  of  iuiliit- 
ment  against  him  on  the  !-aid  charges  were  ignored  by  the  graml  jury,  and 
the  petitioner  alleged  that  said  informations  were  gotten  up  by  the  poiiit'ii- 
tiary  authorities  aa  a  mere  pretext  to  secure  liis  surrender,  to  the  eiiil  that 
they  migiit  seize  and  imprison  him  on  his  conviction  for  burglary.  The  re- 
turn of  the  warden  of  the  penitentiary  set  up,  as  his  authority  for  holding 
him,  his  commitment  to  the  penitentiary  by  the  court  of  Clarion  tounty 
under  his  convic!ti(m  anil  sentence  for  burglary. 

The  iH'tition  for  ajiplication  for  a  writ  of  habeas  eorptiH  was  presented  to 
Judge  Achesun,  who  refused  to  releiune  the  petitioner.     "  Clearly,"  he  says: 


KER  V.  THE  PEOPLE. 


211 


"  An  offender  can  acquire  no  rights  against  the  claims  of  justice  by  flight  to 
a  foreign  jurisdiction ;  and  extradition  treaties  are  not  made  in  the  interest 
01  fugitive  criminals."  Citing  United  Slates  v.  Caldwell,  8  Blatch.,  131; 
United  States  v.  Lawrence,  l!3  Blatch.,  29.");  Adriancev.  Lagrave,  59  N.  Y., 
110;  State  v.  Brewster,  7  Vt.,  118;  Davis'  Case,  18  Pa.  St.,  37.  "It  may 
have  been  open  to  the  petitioner,"  ho  says,  "  when  before  the  Canadian 
courts,  to  show  that  the  extradition  proceedings  were  not  prosecuted  in 
good  faith.  But,  having  been  surrendered,  it  is  not  for  him  to  raise  that 
qucj^tion  before  the  tribunals  of  his  own  country." 

In  the  absence  of  any  compact  or  other  arrangement  between  the  states, 
a  person  extradited  from  one  state  to  another  for  a  certain  offense,  after 
being  tried,  accpiitted  and  discharged,  may  be  arrested  and  tried  for  another 
offense  before  ho  is  allowed  to  return  to  the  state  from  which  he  was 
brought.    State  ex  vcl.  Brown  v.  Stewart,  Circuit  Judge,  CO  Wis.,  587. 


Ker  v.  The  People. 

(110  111.,  627.) 

Extradition  :  Jurisdiction  —  Treaty  —  Variance — Embezzlement  —  Eleo- 
tion  —  Evidence — Various  acts  of  embezzlement  —  Indictment — Ver- 
dict—  Larceny  at  common  laiv, 

1.  fLE.v  TO  JURISDICTION  — Illegal  AiiuEST  in  foreign  country. — To  an 
inilictmeiit  for  embezzlement  and  larceny  the  defendant  pleaded  to  the 
jurisiliction  of  the  court,  in  substance,  that  the  president  of  the  United 
States,  upon  th(?  written  request  of  the  governor  of  this  state,  issued  nn 
extradition  warrant  to  the  government  of  Peru  for  the  suiTender  of 
the  defendant,  under  the  treaty  with  that  government,  to  be  brought 
back  to  this  country  on  a  charg(}  of  larceny ;  that  on  the  same  day  this 
warrant  was  issued,  the  secre'nry  of  state  made  a  written  request  upon 
the  United  States  consul  acting  at  Ijima,  to  procure  the  executive  of 
Peru  to  surrender  tlie  defendant  to  one  Jtilian.  under  said  treaty:  that 
no  n'(|iu'st  was  ever  made  by  said  consul,  or  by  Julian,  or  by  any 
other  perM>n,  upon  any  of  the  authorities  of  the  government  of  Peru 
for  the  stuTcnder  of  defendant,  nor  was  any  consent  or  authority 
piveji  by  any  of  the  authorities  or  agcMits  of  Peru,  to  Julian  or  to  any 
other  person,  to  arrest  and  remove  defendant  from  Poru;  and  that 
on  April  3,  1883,  while  the  defendant  was  domiciled  at  Lima,  in  Peru, 
Jidiaii,  with  {he  aid  of  persons  whose  names  were  unknown,  without 
any  authority  or  warrant  from  the  authorities  or  diplomatic  agents  of 
Pern,  arrested  the  defendant,  and  forced  him  to  go  toCallao,  and  there 
placed  him  on  board  a  vessel  and  carried  him  to  Honolulu,  and  at 
that  poii;  transferreil  him  to  another  vessel  which  carried  him  to  Sun 
Francisco,  California,  where  he  was  arrested  on  a  rcMjuisitiou  from 
the  governor  of  this  state,  and  brought  to  this  state  for  trial.  Tlie 
court  below  sustained  a  demurrer  to  tliia  plea.  Held,  that  the  de- 
murrer was  properly  sustained. 


212 


AMERICAN  CRIMINAL  REPORTS. 


8.  On  requisition,  reqularity  op  arrest  not  open  to  question.— 
Where  a  person  cliargoJ  witli  crime  in  this  state  was  arrosteJ  in  a 
Bister  state  and  brought  licre  for  trial,  on  a  requisition  of  the  governor 
of  this  state,  it  was  held  tliat  our  courts,  on  the  trial  of  such  fugitive, 
would  not  in(}uire  into  the  regularity  of  his  aiTest  and  surrentlor  i  i  such 
sister  state,  and  tliat  it  did  not  matter  if  he  had  been  illegally  arrested 
in  a  foreign  country  and  brought  forcibly  to  such  sister  state. 

3.  Fugitive  from  justice  —  Legality  of  arrest  not  a  question  fob 

THE  courts. —  Whei'e  legal  steps  have  been  taken  for  the  apprclu^nsion 
and  return  to  this  country  of  a  fugitive  from  justice,  and  he  is  brought 
back  to  the  United  States,  where  he  is  arrested  on  a  requisition  of  the 
executive  of  this  state  and  brought  here  for  trial,  the  fact  that  he  may 
have  been  illegally  arrested  in  such  foreign  country  and  brought  to  the 
United  States  does  not  deprive  the  courts  of  this  state  of  jurisdiction 
to  try  him  for  any  offense  charged  against  him,  the  state  not  being  a 
party  to  such  illegal  arrest  and  abduction. 

4.  Legality  op  arrest  of  a  fugitive  froji  justice  in  a  foreign  coun- 

try NOT  necessary  TO  GIVE  COURT  JURISDICTION. —  The  rulo  at  com- 
mon law  is,  that  the  court  trying  a  party  for  crime  committed  within 
its  jurisdiction  will  not  investigate  the  manner  of  his  capture  in  a  for- 
eign state  or  country,  tliough  his  capture  and  return  may  have  been 
plainly  without  authority  of  law. 

6.  RiGUT  OP  ASYLU.M  TO  FUGITIVE  Fr.oM  JUSTICE. —  A  fugitive  from  jus- 

tice has  no  asylum  in  a  foreign  country  when  he  is  guilty  of  an  offense 
for  which  lie  is  liable  or  subject  to  extradition,  by  treaty  between  this 
and  the  foreign  government.  If  he  ia  illegally  and  forcibly  removed 
from  such  foreign  country,  that  country  alone  has  cause  of  complaint, 
and  he  cannot  complain  for  it. 
C.  Extradition  of  fugitives  depends  on  treaty. —  Where  no  treaty 
exists  between  two  governments  for  the  extradition  of  criminals  fleeing 
from  justice,  there  is  no  obligation  existing  that  can  bo  insisted  upon 
to  suiTender  them  for  trial  to  the  government  from  which  they  have 
fled ;  but  as  a  matter  of  comity  between  friendly  nations,  gicat  offend- 
ers are  usually  suiTendered  on  retjucst  of  the  govei-nment  claiming  the 
right  to  punish  them. 

7.  Fugitive,  when  extradited,  must  be  tried  only  for  the  crimes 

NAMED  IN  TREATY. —  Where  a  fugitive  from  justice  has  been  brouglit 
back  to  the  country  from  wliich  ho  has  floJ,  on  a  warr.ant  of  extradi- 
tion in  conformity  with  the  <orms  of  a  treaty  existing  between  two 
governmentH,  ho  cannot  bo  proceeded  against  or  ti'ied  for  any  other 
offenses  tlian  those  mentioned  in  the  treaty,  and  for  which  he  was  ex- 
tradited, without  first  being  afforded  an  opportunity  of  returning. 
But  this  doctrine  has  no  np[)li('<ation  where  the  fugitive  has  been 
brought  back  forcibly,  and  not  under  the  terms  of  the  treaty,  or  under 
an  extradition  warrant. 

8.  Variance  as  to  ownership  op  securities  embezzled.— An  indict- 

ment for  embezzlement  and  larceny  charged  the  money,  funds  and 
Bocurities  embi'zzled  and  stolen,  as  tlie  goods  and  personal  ]>ro]icrty  of 
A,  B  and  C,  partners  under  the  name  of  A,  B  &  Co.   The  i)roof  showed 


KER  V.  THE  PEOPLE. 


that  Ix'forc  t!i(^  iill!',";'.'il  oftt'tiso  tlio  firm  w.is  coinposcd  of  A.  ]i.  C  and 
D,  (loinp;  business  undor  tlie  s.inie  name,  the  latter  being  a  special 
partner,  and  that  the  iuticles  of  jiartnership  were  a  matter  of  record} 
but  that  before  tlie  alleged  (Jlense,  D  retired  from  the  lirm,  although 
the  dissolution  of  the  lirm  of  the  f<;ur  was  not  made  a  matter  of  reo 
ord,  and  notice  given,  as  retiuired  by  law.  Held,  tiiat  there  was  no 
variance,  as,  after  D  retired,  the  property  in  fact  belonged  only  to  A, 
D,  and  C. 
9.  Embezzle JiKN'T  —  CoMPELLiNO  an  election  as  to  a  single  act.— On 
an  indictment  for  embezzlement  and  lax'ceny  of  moneys,  funds  and 
eocurities,  there  is  no  error  in  the  court  refusing  to  compel  the  prosecu- 
tion to  elect  upon  what  alleged  act  of  embezzlement  or  larceny  a  con- 
viction will  be  asked,  as  emlczzlemcnt  may,  and  most  often  does, 
consist  of  many  acts  done  in  a  series  of  years  by  virtue  of  the  confi- 
dential relations  existing  between  the  employer  and  employee. 

10.  Indictment  for  emisezzlemknt  — Evidexce  op  various  acts.— The 

statute  (section  82  of  the  Criminal  Code)  makes  it  sulHcient  for  an  in- 
dictment for  embezzlenunit  to  allege,  generally,  an  embezzlement, 
fraudulent  conversion,  or  taking,  with  intent  to  convert  to  the  defentl- 
a;it's  own  use,  the  money,  funus  cr  serurities  of  the  employer  to  a  cci^- 
tain  amount  or  value,  without  specifying  any  particulars  of  such 
embezzlement,  and  on  the  trial  evidence  may  b'>  given  of  any  such 
embezzlement,  fraudident  conversion  or  taking  witi.  such  intent ;  .and 
it  is  made  sufflcient  to  maintain  the  indictment,  taat  any  bullion, 
money,  note,  bank-note,  check,  draft,  bill  of  exchange  or  other  secu- 
rity for  money  of  the  euiploytr,  of  Avhatever  value  or  amount,  waa 
fraudulently  converted  or  taken  with  such  intent  by  tlu'  clerk  or  em- 
ployee. In  such  case  it  is  ^iroper  to  allow  proof  of  any  t  ud  all  acts  of 
embezzlement  to  go  to  the  jury. 

11.  New  trial  — Question  ok  fact  and  of  law. —  Ordinarily,  whether 

there  is  evidence  to  warrant  a  conviction  in  a  criminal  case  is  a  ques- 
tion for  the  Jury,  the  court  taking  care  always  to  see  that  no  manifest 
injustice  has  been  done :  but  whether  the  verdict  is  contrary  to  tho 
law,  is  a  question  for  the  court. 

12.  When  verdict  is  aoainst  the  law. —  A  verdict  in  a  criminal  case  is 

against  tho  law  when,  admitting  all  tho  evidence  tends  to  prove,  it 
docs  not  show  the  crime  charged. 

13.  Indutment  good,  in  language  of  the  statute.— An  indictment  for 

eud)ezzlement  substantially  in  the  language  of  the  statute  is  sufft- 
cient. 

14.  Statute  defining  ejibezzlejient,  construed.— Tlie  word  "care,"  aa 

used  in  section  75  of  the  Criminal  Code,  relating  to  embezzlement,  ia 
the  equivalent  of  " custody,"  and  may  mean  "charge,"  "safe-keep- 
ing," "  preservation,"  or  "  security."  The  word  "  possession,"  as  used 
m  the  same  section,  has,  perhaps,  a  different  and  broader  meaning 
than  the  wonl  "care;"  but  it  may  also  mean  "to  keep,"  "to  take  or 
seize  hold,"  "to  hold  or  occupy,"  as  tho  owner  of  property  would  or 
might  do.  And  it  matters  little  whether  one  or  both  words  are  used 
in  an  indictment. 


"Tl»^^" 


214 


AMERICAN  CRIMINAL  REPORTS. 


15.  What  is  possession  of  goods  by  an  employee,  belonoino  to  em- 

ployer.—  A  bank  clerk  'lavinp:  access  to  the  funds  and  Hecnritios  of 
tlie  bank  in  its  vaults,  anc.  trubted  with  their  keejiinfj  for  various  ))ur- 
poscs,  may  Ije  said  to  liare  their  possession  by  virtue  of  liis  emjJoy- 
ment.  within  the  nuanin^  of  paction  75  of  the  Criminal  Code. 

16.  Embezzlement  — Laucevy  'T  '    muon  law.— The  fact  that  the  felo- 

nious taking  of  inom/s  m  ^  rities  out  of  a  bank  vault  by  a  bank 
clerk,  and  converting  thei.  'n'  nvn  use,  may  be  larceny  at  com- 
mon law,  makes  it  no  less  emlK>z;;lement  under  the  statute.  It  is 
entirely  comi)eteut  for  the  'egislaturo  to  declai-e  what  acts  shall  cou- 
stitute  the  crime  of  embez /.lemciit,  ana  i'l  \  'ho  jninishment. 

Writ  of  Error  to  the  Criminal  Court  of  Cook  County;  the 
Hon.  Joseph  E.  Gary,  Judge,  presiding. 

Mr.  Bolert  Ilervey  and  J//*.  C.  Stuart  Beattie,  for  the  ap- 
pellant. 

Mr.  Luther  Laflin  Mills  and  Messrs.  Swett,  Ilaslcell  cfc  Gross- 
<yn,p,  for  the  jieople. 

Mr.  Justice  Scott  delivei'cd  the  opinion  of  the  court. 

It  appears  i'roui  the  record  before  tliis  court  that  at  the 
Eebiuary  term,  1883,  of  the  criminal  court  of  Cook  county, 
the  grand  jury  presented,  in  open  court,  an  indictment  against 
Frederick  M.  Ker,  whicli  contained  foui'  counts,  in  the  first  of 
which  he  is  charged  with  embezzlement  as  bailee;  in  tlie 
Becond  with  embezzlement  as  a  clerk;  in  the  third,  witli  lar- 
ceny as  at  common  law;  and  in  the  fourth,  with  receiving 
stolen  property.  In  the  several  counts,  the  money,  funds  and 
securities  alleged  to  have  been  embezzled  and  stolen  are  al- 
leged to  be  the  personal  goods  and  property  of  David  Preston, 
iSamuel  A.  Ivean  and  Elisha  Gray,  a  copartnership  firm  under 
the  name  of  Preston,  Xean  &  Co.  On  the  13th  day  of 
October,  18S3,  defendant,  on  being  arraigned,  filed  a  plea  to 
the  jurisdiction  of  the  court  over  his  person,  the  effect  of 
which  was  to  ask  immunity  from  prosecution  on  the  indict- 
ment tiien  ])ending  against  him,  for  the  reasons  set  forth  in 
his  plea.  To  that  plea  a  general  demurrer  was  sustained,  and 
defendant  was,  by  the  court,  required  to  plead  over.  Against 
the  protest  of  defendant  that  he  was  entitled  to  immunity 
from  prosecution  for  the  oifenses  alleged  against  him  in  the 
indictment,  on  account  of  the  matters  set  forth  in  his  ])lea, 
and  because  he  refused  to  plead  over,  the  court  entered  a  ])lea 


gov(>n 
the  Ui 


KER  V.  THE  PEOPLE. 


215 


of  not  gnilty  for  him.  On  tlio  trial  the  jury  found  defendant 
o-nilty  of  cniljczzlomcnt,  as  charged  in  tlie  indictment,  and 
li.ved  the  term  of  punishment  at  ten  years  in  the  penitentiary. 
A  motion  for  a  new  trial  entered  by  defendant  was  overruled, 
and  the  court  pronounced  judgment  on  the  verdict,  and  de- 
fendant brings  the  case  to  this  court  on  error. 

One  ground  of  error  relied  on  with  much  confidence  is  the 
decision  of  the  court  sustaining  the  demurrer  to  defeiulant's 
plea  calling  in  question  the  right  or  jurisdiction  of  the  court 
to  proceed  with  the  trial  against  him, —  or,  what  is  the  same 
thing,  it  is  insisted  it  was  error  in  the  court  not  to  grant  him 
immunity  from  prosecution.     Of  course,  the  demurrer  admits 
tlie  facts  alleged  in  tlie  ])loa,  and  there  can  be  no  controversy 
as  to  wliat  they  are.     Sliortly  stated,  the  principal  facts  are, 
tluit.  upon  the  written  recjuest  of  the  governor  of  Illinois,  the 
president  of  the  United  States  issued  an  extradition  warrant, 
(Urectcd  to  the  government  of  the  republic  of  Peru,  for  the 
snrrendei"  of  defendant,  under  tlie  treaty  of  our  government 
Avith  tliat  govei'umeiit.  and  named  therein  Henry  G.  Julian  as 
m(>sscuger  to  receive  defendant  from  the  autliorities  of  Peru. 
The  crime  of  larceny,  with  which  defendant  stood  charged,  is 
one  of  the  oll'enses  specified  in  the  treaty  for  which  a  party 
slioidd  be  surrendered,  and  it  was  specified  in  the  president's 
warrant  as  the  crime  for  which  his  surrender  was  demanded. 
On  the  same  day  the  executive  warrant  was  issued,  the  secretary 
of  state  at  Washington  made  a  written  request  upon  the  United 
States  consul  acting  at  Lima,  to  procure  the  executive  of  Peru 
to  surrender  defendant  to  Julian,  under  the  treaty  between  the 
United  States  and  Pei'u  of  September  12,  1870,  which,  it  is 
averred,  was  and  is  tlie  only  treaty  in  force  between  the  two 
governments.     It  is  tlien  averred  no  request  was  ever  made  by 
the  United  States  consul  at  Lima,  or  by  .Tulian,  or  any  other 
person.  ujKm  any  of  the  authorities  ordi})lomatic  agents  of  the 
governmei  .  of  Peru,  for  the  surrender  of  defendant,  in  com- 
pliance with  the  president's  warrant,  nor  was  any  consent  or 
autliority  given  by  tlie  authorities  or  <liplomatic  agents  of  Peru, 
to  Julian  or  to  any  other  person,  to  ai-rest  and  remove  defend- 
ant from  l*eru,  for  any  cause,  and  that  on  the  3d  day  of  April, 
l!^s;],  while  defendant  was  (.omiciled  at  Lima,  in  Pei'u.  Julian, 
with  the  aid  of  ])ersons  whuse  names  are  unknown,  without  any 


216 


AMERICAN  CRIMINAL  REPORTS. 


authority  or  warrant  from  the  autliorities  or  diplomatic  a'.^onts 
of  rem,  arrested  det'en(hint,  and  forced  him  to  go  to  Culluo, 
and  there  placed  him  on  board  the  steamship  "  Essex,"  iuid 
kept  him  a  close  prisoner  on  such  voss '1.  Afterwards  tlio 
"  Essex  "  sailed  to  the  port  of  Honolulu,  with  defeiKJiiiit  on 
board,  and  there,  at  that  port,  but  i)erliaps  outside  the  liai'l)()i', 
defendant  was  transferred  to  the  "  City  of  Sidney,"  an  j\mori- 
can  ship  about  to  sail  for  San  Francisco,  in  California.  Tlio 
steamship  "  Essex"  was  a  vessel  belonging  to  tho  navy  of  the 
United  States,  and  was  at  the  time  commanded  by  ollicciv,  of 
the  navy.  Tho  "  City  of  Sidney  "  was  perhaps  an  Americm 
merchant  vessel, —  but  how  that  is,  matters  little.  While  tliesc 
events  were  transpiring,  the  })arties  prosecuting  procuriMl  from 
the  governor  of  the  state  of  Illinois  a  requisition  upon  tl:o  gov- 
ernor of  California,  for  the  arrest  of  defendant,  in  whicli  Frank 
Warner  was  named  a  suitable  person  to  receive  defendant  from 
the  authorities  of  Californijiand  bring  him  to  this  state  for  trial. 
Afterwards  tlie  governor  of  California  issued  his  wai'i'ant,  in 
pursuance  with  the  requisition  of  the  governor  of  the  state  of 
Illinois,  for  the  arrest  of  defendant.  On  his  jvrrival  at  San 
Francisco  in  the  "  City  of  Sidney,"  defendant  was  arrested,  on 
the  warrant  of  tho  governor  of  California,  and  delivered  to 
Frank  AVarncr,  the  messenger  named  to  receive  him,  and  was 
by  him  brought  into  this  state,  and  delivered  into  the  custody 
of  the  slieriif  of  Cook  county,  Avhere  the  indictment  on  wliicli 
he  Avas  afterwards  tried  was  found,  and  was  then  pending  in 
the  criminal  court  against  him.  Other  mattei-s  are  contained 
in  the  ])lea,  but  as  they  are  not  necessary  to  an  understanding 
of  the  discussion  that  is  to  follow,  they  need  not  be  stated. 

One  proposition  asserted  by  counsel  for  the  defense  is,  tho 
criminal  court  of  Cook  county  never  obtained  jurisdiction  of 
defendant  by  "  due  process  of  law,"  for  the  purpose  of  trying 
him  for  larceny,  or  any  other  crime.  The  position  taken  on 
this  branch  of  the  case  is  much  weakened  by  the  consideration 
it  appears  from  the  averments  of  the  plea  itself  the  bringing 
of  defendant  info  the  state  trying  him  for  an  offense  com- 
mitted within  its  limits,  was  by  "  due  process  of  law,"  what- 
ever wrong  may  have  been  done  to  him  elsewhere.  The 
governor  of  the  state  of  Illinois  made  a  requisition  upon  the 
governor  of  the  state  of  California  for  the  surrender  of  (1(>- 


KER  V.  THE  PEOPLE. 


217 


fondant  as  a  fugitive  from  tlio  justice  of  the  state,  and  desig- 
nated Frank  Warn(!r  to  i-eceive  defendant  and  bring  him  back 
to  this  state.  In  coin])liance  with  that  requisition,  the  gov- 
eiiior  of  CaUfornia  did  issue  his  warrant,  upon  which  defend- 
ant was  arrested  within  tlie  jurisdiction  of  that  state,  and 
dehvercd  into  the  custody  of  Frank  Warner,  who  brouglit  him 
into  tliis  state,  and  dehvercd  him  to  the  sheriff  of  Cook  county. 
That  was  in  accordance  with  usage  and  hiw.  It  is  not  allow- 
able, on  the  trial  of  one  who  has  been  surrendered  by  a  sister 
state,  under  the  laws  of  congress,  as  a  fugitive  from  justice,  to 
iiKjuiro  as  to  the  regularity  or  irregularity  of  such  surrender. 
It  ail'ects  neither  the  guilt  nor  innocence  of  the  accused  nor  tho 
juiisdiction  of  the  court  to  try  him.  Conceding,  as  may  bo 
(lone,  defendant  was  arresteil  in  l*eru,  and  brought  into  tho 
state  of  California,  without  warrant  of  law,  tho  state  now 
pi'usix'uting  defendant  was  not  a  party  to  any  violation  of  any 
treaty  or  other  public  law.  The  ajjplication  the  state  made 
to  the  executive  de|)artment  of  the  general  government  was 
for  the  legal  arrest  of  defendant,  and  if  there  was  any  abuse 
of  tlie  wai'iant  of  tlie  federal  government,  or  any  treaty  ob- 
ligations with  a  friendly  power  violated,  it  was  not  done  by 
the  state  now  conducting  the  prosecution  against  defendant. 
Julian,  whom  it  is  alleged  nuide  the  illegal  arrest  of  defendant, 
and  brought  him  within  the  jurisdiction  of  tho  state  of  Cali- 
fornia, was  acting  either  under  the  warrant  of  the  president  or 
on  his  own  responsibility.  He  did  not  bring  defendant  into 
this  state  at  all.  It  was  done  b}'^  another  person,  on  a  requisi- 
tion from  the  governor  of  Illinois,  and  on  a  warrant  issued  by 
the  governor  of  California  for  his  arrest  in  that  state.  Of  tho 
action  of  tho  state  prosecuting  him,  defendant  can  have  no 
just  ground  of  complaint  that  he  was  brought  within  its  juris- 
diction without  "  due  process  of  law."  T/ie  People  v.  lioioe,  4 
Parlccr's  Cr.  Rep.,  2r»;>;  Ailriance  v.  Layrave,  59  N.  Y.,  110; 
The  State  v.  lioss,  21  Iowa,  407. 

But  waiving  every  objection  to  the  ])lca  that  may  seem  to  bo 
technical,  and  considering  it  on  the  broadest  grounds  taken  in 
its  support,  it  is  thought  the  demurrer  was  properly  sustained. 
Three  propositions  are  stated,  which,  if  they  can  be  maintained, 
it  is  insisted  lead  to  the  ecmclusion  the  ei-iminal  court  of  Cook 
county  never  obtained  jurisdiction  of  defendant  to  try  him  for 


218 


AMERICAN  CRIMINAL  REPORTS. 


larceny  or  any  other  crime:  First,  that  the  ITnitorl  States,  by 
its  treaty  with  the  roi>ublic  of  Peru,  provided  "  duo  pi-ocess  of 
law"  for  getting  jurisdiction  of  jiersons  domiciled  in  that 
country  chai'ged  with  liaving  committed  certain  crimes,  among 
whicli  is  hirceny,  of  which  defonchmt  was  charged  in  one  count 
of  the  indictment  against  him ;  second,  that  such  "  duo  process 
of  law"  must  be  obeyed  in  all  its  terms,  expressed  or  implied; 
and  third,  that  such  "  due  process  of  law  "  for  the  purpose  of 
getting  jurisdiction  in  such  cases,  by  necessary  implication  ex- 
cludes any  other  mode  of  getting  jurisdiction.  As  has  beca 
seen,  defendant  was  not,  in  fact,  brought  within  the  juris- 
diction of  the  United  States  under  its  treaty  with  Peru ;  but 
the  argument  assumes  that  if  defendant  was  brought  back  to 
the  United  States  otherwise  than  under  the  treaty  between 
the  United  States  and  Peru,  his  capture  and  detention  would 
be  unlawful,  as  being  in  violation  of  a  right  of  asylum  he  is 
supposed  to  have  had,  under  the  treaty,  at  the  place  he  was 
domiciled  hen  ciiptured.  Xo  principle  is  suggested  on  which 
this  proposition  can  bo  maintained  as  broadly  as  stated,  nor  is 
anj^  case,  Engliih  or  American,  cited  where  the  decision  was 
rendered,  on  analogous  facts  with  the  case  being  considered, 
that  holds  the  doctrine  contended  for.  Und<jubtcdly  at  com- 
mon law  the  rule  is,  the  court  trying  a  party  for  a  crime  com- 
mitted within  its  jurisdiction  will  not  investigate  the  manner 
of  his  capture,  in  case  he  had  Hod  to  a  foreign  country  and  had 
been  brought  back  to  its  jurisdiction,  although  his  ciiptui'O  had 
boon  i)hiinly  without  authority  of  law.  It  is  sulficicMit  tlie  ac- 
cused is  in  court,  to  require  him  to  answer  the  indictment 
against  him.  It  is  thought,  and  with  good  reaso:i,  any  other 
rule  would  work  great  embarrassment  in  the  ailministraticm  of 
the  criminal  law.  In  E,c  parte  Scott,  9  Barn.  t*c  Cress,,  410,  the 
accused  was  arrested  at  Brussels  by  a  police  ollicer,  Avithout 
any  warrant  of  law,  and  brought  back  to  England.  The 
prisoner  was  brought  up  on  halfeaa  corpus,  that  she  might  be 
discharged.  It  appeared  a  true  bill  had  been  found  against  her 
for  a  misdemeanor,  and  Lord  Tenderden,  before  whom  the  writ 
was  heard,  refused  to  inquire  into  the  circumstances  of  her  ar- 
rest, whether  it  was  legal  or  illegal,  and  hold  the  accused 
amenable  to  justice.  It  wassaidin  thatcaso,  if  theact  comi)laincd 
of  were  done  against  the  law  of  a  foreign  country,  that  country 


iH 


KER  I'.  THE  PEOPLE. 


210 


iiiiiilit  liiivc  vindicated  its  OAvn  law.  It  does  not  seem  to  be 
doubted  that  this  case  accurately  states  the  common  law  on  this 
subject,  nor  is  it  doubted  that  many  well-considered  American 
cases  declare  the  same  doctrine.  TJte  State  v.  Smith,  Hailoy's 
(S.  C.)  Law  Rep.,  281,  and  note;  The  State  v.  Brewxtei',  7  Vt., 
118;  A<l nance  v.  Zat/mve,  59  N.  Y.,  110;  The  Slate  v.  liim,  21 
Iowa,  407;  United  States  v.  CnMwell,  8  Ulatchf.,  131;  United 
Stdftfi  V.  Lawrence,  1.3  id.,  2l>5.  The  rule  is  ditrerent  in  civil 
cases,  1'or  the  reason  a  party  guilty  of  fraud  in  bringing  a  party 
within  the  jurisdiction  of  the  court  will  not  be  permitted  to 
have  a  personal  advantage  from  his  own  wrongful  conduct. 

It  may  be  well  to  recur  again  to  the  distinction  taken  by 
counsel  which  it  is  insisted  takes  the  case  being  considered  out 
of  the  rule  esta*l)lished  by  the  English  and  Ameiican  cases 
cited,  that  some  further  discussion  nuiy  be  had  upon  it.  The 
position  talvcn  is,  that  where  a  tr(>aty  exists  between  two  gov- 
cnnnent. ,  as  no  capture  can  lawfully  be  had  of  a  party  accused 
of  crime,  in  the  c  .untry  to  which  he  has  tied  for  asylum,  ex- 
cept under  the  terms  of  such  treaty,  if  a  capture  and  removal 
(»f  a  l)iirty  is  made  in  violation  of  the  treaty  it  is  without 
"due  process  of  law,"  and  the  court  witliin  whose  jurisdiction 
the  accused  is  wrongfully  brought  obtains  no  rightful  jurisdic- 
tion to  try  him  for  any  crime,  —  either  for  the  crime  for  which 
it  was  attempted  to  extradite  him,  or  for  any  other  crime.  The 
exact  question  arising  in  this  case  was  not  involved  in  either 
of  the  cases  vt  ,s)/j>ra,  nor,  indeed,  has  the  attention  of  the 
court  Ix^en  called  to  any  case  where  the  facts  were  precisely 
analogous. 

It  is  confidently  insisted  all  through  the  argument  for  the 
defense,  that  defendant's  right  of  asylum,  under  the  treaty  be- 
tween the  two  governments,  was  complete  when  he  was  domi- 
ciled in  Peru,  and  that  he  has  been  deprived  of  that  right  by 
sheer  force,  without  "due  process  of  law."  But  is  that  posi- 
tion tenable?  Upon  what  principle  can  it  be  maintained?  As 
a  question  of  law,  on  the  facts  as  stat(>d  in  the  plea,  defendant 
never  had  any  right  of  asylum  in  Peru  that  would  secure  him 
innnunity  from  ari-est  cm  account  of  offenses  mentioned  in  the 
treaty,  and  for  which  a  party  was  subject  to  extradition.  Conced- 
ing, as  may  be  done  for  the  pur|)oses  of  this  decision,  the  propo- 
sition insisted  upon,  the  enumeration  of  certain  crimes  in  the 


220 


AMERICAN  CUDUNAL  REP0IIT3. 


treaty  for  which  a  party  may  bo  cxtraditcil  implies  that  as  to 
all  other  offenses  he  is  guarantied  asylinu  in  the  country  where 
ho  is  domiciled,  how  does  that,  if  true,  affect  the  question  bcin" 
considered?  vVs  to  the  crime  of  larceny,  with  which  defend- 
ant  was  charged,  he  could  have  no  right  of  asylum  in  Peru, 
as  that  is  one  of  the  crimes  enumerated  in  the  treaty,  and  what 
right  sccnired  by  treaty  was  violated  when  ho  was  arrcitcd, 
either  with  or  without  duo  process  of  law?  The  accused  was 
subject  to  extradition  at  any  time,  under  the  treaty,  and  wliat 
difference  can  it  malce,  in  law,  as  to  the  right  of  a  state  court 
to  try  del"e:i(hint  for  an  extraditable  crime,  wiiether  the  existin"" 
treaty  was,  in  fact,  observed  in  all  its  forms  i  Tliat  Avhich  was 
done,  if  wrong,  was  in  violation  of  international  law,  and  if 
the  government  of  Peru  does  not  com])hun  of  the  arrest  of  de- 
fendant within  its  jurisdiction,  as  an  infraction  of  international 
law,  it  does  not  Me  in  the  moiitli  of  defendant  to  make  com- 
plaint on  its  behalf.  Questions  arising  under  international  law 
c;)ncern  principnHy  the  nations  involved,  and  their  settlement 
is  a  national  affair. 

Ilejecting,  as  must  bo  done,  tho  erroneous  assumption  de- 
fendant had  the  right  of  asylum  in  Peru  under  tho  treaty  be- 
tween the  two  governments,  and  tho  argument  for  the  defense 
is  wholly  without  force.  It  is  plain  he  had  no  right  of  asylum 
the  law  of  either  government  would  pi'otect.  The  treaty,  as 
to  the  crime  of  larceny,  with  which  defendant  stood  indicted, 
had  provided  no  asylum  that  would  secure  him  immunity  from 
arrest  for  that  crime  in  the  country  whore  ho  was  domiciled. 
The  utmost  that  can  be  claimed  is,  that  the  person  having  tlio 
president's  warrant  for  tho  extradition  of  defendant  prooce  led 
irregularly,  and  may  have  rendered  himself  liable  as  for  a  per- 
sonal trespass,  but  he  deprived  defendant  of  no  right  of  asyliuii 
in  the  country  of  his  temporary  domicile,  for  the  simple  rea- 
son he  had  none  secured  by  any  public  law,  of  which  he  could 
be  dispossessed. 

The  attention  of  the  court  has  been  called  to  Commonwealth 
V.  IMnes,  13  Eush,  700;  The  State  v.  Vanderpool,  16  Vol.  C. 
L.  N.,  31,  and  other  analogous  cases,  upon  which  great  stress 
is  laid,  as  holding  principles  it  is  insisted  ought  to  control  tlie 
present  decision.  These  cases  have  been  examined,  and  it  is 
found  they  hold  the  doctrine  a  fugitive  from  the  justice  of  tho 


state  wlio  1 
ho  had  \\w 
tli(>  terms  < 
cannot  be 
offcMisos  th 
was  cxtrad 
return  to  t 
these  cases 
law,  tliat  t 
from  ano) ' 
who  hai 
upon  tr^.. 
no  treaty  ( 
to  surrend( 
they  have 
jrrcat  offer 
govcrnmer 
ning  throu 
itself  to  a 
extraditior 
named  in  \ 
obtains  no 
out  bad  fa 
tion,  and 
reparation 
letter  and 
conceded 
weiglit  of 
considered 
served  in  t 
by  force,  c 
issued  by 
feudant  sh 
luiglit  be  t 
midor  the 
tliat  charfj 
victed  of  ] 
contained 
convicted, 
larceny,"  i 
trial  of  th 


KER  V.  THE  PEOPLE. 


221 


stiito  who  has  been  brought  buck  from  the  country  to  which 
ho  liad  fleil,  on  a  wurrant  of  extradition,  in  conl'ormity  with 
till'  terms  of  Ji  treaty  oxistin;jf  betwor^n  the  two  governments, 
cannot  bo  i)roc(';Mled  against  or  tried  by  tlie  state  for  any  other 
olTonscs  than  those  mentioned  in  the  treaty,  and  for  which  he 
was  extra(Uted,  without  tirst  being  alforded  an  opportunity  to 
return  to  the  country  whence  he  had  boon  brouglit.  Some  of 
these  cases  also  dcchire  tlio  familiar  principle  of  international 
law,  that  the  right  of  one  government  to  demand  and  receive 
tioin  anot'  (^r  the  custody  of  an  offender  against  its  laws,  and 
who  has  ght  an  asylum  in  such  foreign  country,  depends 
upon  tr^..  >iipulations  between  such  governments.  Where 
no  treaty  exists,  no  obligation  that  can  be  insisted  upon  exists 
to  surrender  criminals  for  trial  to  the  government  from  which 
tbey  have  Jled;  but  as  a  matter  of  comity  between  nations, 
great  offenders  are  usually  surrendered  on  request  from  the 
government  claiming  the  right  to  try  them.  A  principle  run- 
ning through  this  latter  class  of  rases  has  much  that  commends 
itself  to  a  sense  of  justice.  It  is,  that  where  a  person  whose 
extradition  has  been  granted  for  trial  for  a  particular  crime 
nauiod  in  the  extradition  warrant,  the  demanding  government 
obtains  no  lawful  right  to  try  him  for  any  other  offenses,  with- 
out bad  faith  to  the  government  that  consented  to  his  extradi- 
tion, and  for  which  it  would  have  just  grounds  to  demand 
reparation.  Such  an  act  would  be  in  violation  of  both  the 
letter  and  spirit  of  the  treaty.  But  this  doctrine,  if  it  shall  be 
conceded  it  has  for  its  su[)port  natural  justice,  and  even  the 
weight  of  authority,  can  have  no  application  to  the  case  being 
considered.  Here,  the  complaint  is,  the  treaty  was  not  ob- 
served in  the  capture  and  detention  of  defendant.  It  Avas  done 
by  force,  outside  of  its  provisions.  The  extradition  warrant 
issued  by  the  executive  of  the  United  States  demanded  de- 
fendant should  be  surrendered  on  a  charge  of  larceny,  that  he 
miglit  be  tried  for  that  olfense.  That  is  an  extraditable  crime 
under  the  treaty  with  the  government  of  Peru.  It  was  on 
tiiat  charge  he  was  put  on  trial.  It  is  true  he  was  not  con- 
victed of  larccn}'  as  at  common  law,  but  the  same  indictment 
contained  counts  for  embezzlement,  an  olfense  of  which,  if 
convicted,  the  statute  declares  "ho  shall  bo  deemed  guilty  of 
larceny,"  upon  which  he  was  tried  at  the  same  time  of  the 
trial  of  the  charge  of  larceny,  and  was  convicted. 


222 


AMERICAN  CRIMINAL  REPORTS. 


Tliere  is  another  reason  tliat  leads  to  tlie  same  conclusion 
the  case  in  hand  is  not  within  tlie  rule  declared  in  the  latter 
lino  of  decisions.  It  is,  that  defendant,  as  has  been  seen,  was 
not  surrendered  by  the  government  of  Peru  under  its  treaty 
with  the  United  States.  According  to  the  averments  in  the 
plea,  no  ell'ort  was  made  to  obtain  defendant  on  the  extra- 
dition warrant,  and  the  official  authorities  of  Peru  were  not 
aslced  to,  and  never  did,  consent  to  his  capture  within  the  juris- 
diction of  that  government.  It  was  done  by  sheer  force,  aiul 
not  imder  the  treaty  at  all.  That  brings  the  case  more  nearly 
under  tlie  decisions  first  cited,  and  they  must  be  regarded  as  of 
controlling  authority. 

But  aside  from  all  authority,  on  principle  defendant  has 
shown  no  right  to  inimunity  from  prosecution  for  the  offenses 
for  which  he  was  indicted.  The  federal  government  has  itself 
violated  no  treaty  with  the  republic  of  Peru.  The  arrest  and 
detention  of  defendant  was  not  by  any  authority  of  the  gen- 
eral government,  and  no  obligation  is  implied  on  the  })art  of 
the  federal  or  any  state  government,  to  the  rei)ublic  of  Peru, 
to  secure  defendant  immunity  from  prosecution  for  any  olfensc. 
What  Avas  dor.e  was  done  by  individual  wrong,  precisely  as 
was  done  in  E.i',  parte  Scott,  mqjra,  and  27ie  St^ft>'  v.  Brcicxtrr, 
supra.  The  invasion  of  the  sovereignty  of  Peru,  if  any  wrong 
was  done,  Avas  by  individuals,  perhaps  some  of  them  OAvingno 
allegiance  to  the  United  States,  and  not  by  the  federal  govern- 
ment. Should  the  government  of  Peru  comphiin  its  sover- 
eignty had  been  invaded  by  citizens  of  the  United  States,  that 
would  be  a  question  arising  under  international  law  and  not 
under  any  act  of  congress  <n*  treaty  of  the  United  States.  Nor 
will  defendant  be  permitted  to  comj)lain  that  his  right  of  iisy- 
lum  in  Peru  has  been  violateil,  for,  as  before  stated,  he  h;ul  no 
right  of  asylum,  as  against  the  crime  of  larceny,  under  the 
treaty  with  Peru,  nor  any  absolute  right  to  asylum  under 
comity  existing  between  nations.  Whether  a  nation  Avill  sur- 
render a  fugitiA'e  from  justice  that  seeks  with  it  an  asylum,  is 
a  question  of  national  comity  resting  in  discretion.  In  no  view 
that  ciin  be  taken  is  defendant  entitled  to  immunity  from  pros- 
ecution on  the  indictment  under  Avhich  ho  Avas  convicted. 

Errors  have  l)een  assigned  that  affect  the  merits  of  the  case 
on  the  trial,  that  must  be  considered.  That  defendant  con- 
verted to  his  own  use  large  sums  of  monev  and  securities  be- 


KER  V.  THE  PEOPLE. 


223 


longing  to  tho  firm  of  Frc«ton,  Kean  &  Co.,  or  to  other  persons 
in  their  care  or  custody,  admits  of  no  doubt.  There  is  no  pre- 
tense he  is  not  guilty  of  criminal  conduct.  The  objections 
taken  to  the  legality  of  his  conviction  are  of  the  most  tech- 
nical character. 

The  ])oint  is  made  there  is  a  variance  in  the  pleading  and  the 
proof.  It  is  alleged  in  the  indictment  the  funds  and  securities 
cnibez/lod  were  the  personal  goods  of  David  Preston,  Samuel 
A.  Kcan  and  Elisha  (^h'liy, —  a  copartnership  under  the  name 
of  Treston,  Kean  &  Co., —  and  the  insistence  is,  the  lirm,  in 
law,  was  composed  of  David  Preston,  Samuel  A.  Kean  and 
James  Payne,  with  Elisha  Gray  as  special  partner.  Certified 
copies  from  the  record  and  files  of  the  county  clerk's  office 
show  the  formation  of  a  limited  partnership,  pursuant  to  tho 
provisions  of  the  statute,  and  that  the  firm  was  at  one  time 
composed  of  David  Preston,  Samuel  A.  Kean  and  James  Payne, 
as  general  partners,  with  Elisha  Gray  as  special  partner. 
That  was  in  May,  ISSl.  The  oral  testimony  given  shows  that 
in  Xovember,  18S1,  the  special  partnership  ceased,  and  since 
then  the  firm,  as  a  matter  of  fact,  has  been  composed  of  David 
Preston,  Samuel  A.  Kean  and  Elisha  Gray.  The  partnership 
articles  of  ^lay,  1881,  wore  made  a  matter  of  record,  but  it 
does  not  appear  there  were  any  partnership  articles  after  that 
date,  and  it  is  insisted  it  is  not  legal  to  show  by  oral  evidence, 
as  was  done,  that  Payne  ceased  to  be  a  partner  in  November, 
1881.  The  objection  taken  rests  on  section  12,  chapter  84,  of 
the  Revised  Statutes  of  1874,  which  provides  no  dissoluti(jn  of 
a  limited  partnership  shall  take  place,  except  by  operation 
of  law,  before  the  time  si)eci(ied  in  tho  certificate  made  a  mat- 
ter of  record,  unless  a  notice  of  such  dissolution  is  also  re- 
corded in  tlie  same  registry,  and  other  ])rovisions  of  the  statute 
complied  with.  The  time  for  the  duration  of  the  partnership 
under  tlie  articles  of  May,  1881,  had  not  ex[)ired  in  2s'oveud)er, 
1881,  when  an  agreement  was  made  between  the  pai'tners  that 
Payne  sliould  cease  to  be  a  partner,  and  Gi'ay  should  become 
a  j^eneral  partner.  The  firm  name  continued  as  it  was,  but 
no  notice  of  the  change  of  the  persons  composing  the  firm 
was  made  a  matter  of  record,  nor  was  any  other  public  notice 
given,  as  the  statute  reciuires  shall  be  given.  On  account  of 
the  non-com] diance  with  the  statute  in  tliis  regard,  it  is  said 


224 


AMEiaCAN  CRIMINxVL  REPORTS. 


the  firm  should  be  regarded  as  still  being  composed  cf  the 
same  persons  as  composed  it  under  tlie  articles  of  May,  1881. 
That  may  be  true  as  to  creditors  and  ])erson8  dealing  with 
the  firm  without  actual  notice,  but  as  between  the  partnera 
themselves,  Payne  had  no  interest  whatever  in  the  firm  assets 
after  the  agreement  he  should  cease  to  bo  a  partner.  Ii  is 
suilicient,  under  the  law^  of  this  state,  that  the  property  is 
alleged  in  the  indictment  to  belong  to  the  persons  w^ho  in  fact 
own  it,  or  have  a  special  interest  in  it.  That  was  done  in  tliis 
case,  and  there  is  no  variance  between  the  proof  and  the  allega- 
tions of  the  indictment  in  this  respect. 

It  is  insisted  the  evidence  shows  a  cumulation  of  offenses,  and 
for  that  reason  it  was  error  in  the  court  to  deny  defendant's 
motion  to  compel  the  prosecution  to  elect  upon  what  alleged 
act  of  larceny  or  embezzlement  a  conviction  would  be  asked. 
The  court,  by  its  ruling,  submitted  all  the  evidence  touching 
the  embezzlement  of  funds  and  securities  by  defendant,  to  the 
jury,  and  it  is  not  perceived  how  it  could  properly  have  done 
otherwise.  Embezzlement  is  a  crime  defined  by  statute,  and 
it  was  entirely  competent  for  the  legislature  to  declare  what 
acts  would  constitute  the  crime,  and  fix  the  measure  of  punish- 
ment. One  element  that  enters  into  the  statutory  definition 
of  embezzlement  is  the  fiduciary  or  confidential  rflation. 
Such  relations  afford  the  amplest  opportunity  to  misappropri- 
ate money,  funds  and  securities,  and  often  present  great  diffi- 
culty in  proving  exactly  when  and  how^  it  was  done.  This  is 
especially  true  with  regard  to  clerks  and  confidential  agents  in 
banks,  or  otlier  corporations  or  firms  doing  a  large  business, 
and  who  are  intrusted,  in  wliole  or  in  part,  with  tlic  care  or 
custody  of  funds,  securities  and  property  belonging  to  banks  or 
other  corporations,  or  to  a  coi)artnership.  It  is  difficult,  in 
such  cases,  if  at  all  ])ossible,  to  prove  with  certainty  when  or 
how  the  embezzlement  was  efTccted.  It  is,  of  course,  done 
with  a  view  to  avoid  detection,  and  the  confidential  relations 
existing  ward  off  snsj)ici(m.  Embezzlement  may,  and  most 
often  does,  consist  of  many  acts  done  in  a  sei'ies  of  years,  and 
the  fact  at  last  disclosed  that  the  emjiloyer's  money  and  funds 
are  embezzled  is  the  crinu?  against  which  the  statute  is  leveled. 
In  such  cases,  should  the  jM'osccution  l)e  {'ompelled  to  elect  it 
would  claim  a  conviction  for  only  one  of  the  mitny  acts  of  the 


series  tli 
if  a  con^ 
CriminaJ 
tion,  or  i 
ceded  to 
aggregal 
T-t  of  th 
articles  < 
accused  < 
might  ve 
of  delive 
be  a  witi 
direct  pr 
fining  en 
acts  done 
tween  th 
or  securit 
in  whole 
rate  acts 
f^rcgate  i 
difficulty, 
proof  in 
the  Crimi 
bezzling, 
ulently  ti 
convert,  t 
bills  of  ( 
or  other  ( 
rated  cor 
sufficient 
ment,  fra 
of  such  p 
to  a  certa 
lars  of  su 
crime,  it 
The  case 
necessity 
bo  difflcul 
dictmcnt 
the  detect 
Vol 


KER  v.  THE  PEOPLE. 


225 


scries  tluit  constitute  the  corpus  delicti,  it  Avould  be  doubtful 
if  a  conviction  could  be  had,  under  sections  75  and  76  of  the 
Criminal  Code,  against  a  clei'k  in  a  bank  or  other  corpora 
lion,  or  a  copartnership,  although  the  accused  might  be  con- 
ceded to  be  guilty  of  embezzling  large  sums  of  money  in  the 
aggregate.  It  might  be  otherwise  or  ditferent,  under  section 
7-i  of  the  Criminal  Code,  where  distinct  sums  of  money  or 
articles  of  personal  property  are  or  may  be  delivered  to  the 
accused  on  different  occasions  wide  apart.  Such  distinct  acts 
might  very  readily  bo  susceptible  of  direct  proof,  for  the  act 
of  delivery  implies  actual  knowledge  in  some  one  who  could 
be  a  witness.  But  no  such  opportunity  is  afforded  to  make 
direct  proof  as  to  acts  done,  under  sections  75  and  76,  de- 
fining embezzlement.  The  bodv  of  the  crime  consists  of  manv 
acts  done  by  virtue  of  the  confidential  relations  existing  be- 
tween the  employer  and  the  employee,  with  funds,  moneys 
or  securities  over  which  tlie  servant  is  given  care  or  custody, 
in  whole  or  in  part,  by  virtue  of  his  employment.  The  sepa- 
rate acts  may  not  be  susceptible  of  direct  proof,  but  the  ag- 
gregate result  is,  and  that  is  embezzlement.  To  avoid  the 
(liiHculty,  no  doubt,  that  might  be  encountered  in  making 
proof  in  sucli  cases,  it  is  provided  by  statute  (section  82  of 
the  Criminal  Code),  in  the  ])rosecution  for  the  offense  of  em- 
bezzling, fraudulently  converting  to  one's  own  use,  or  fraud- 
ulently taking  or  secreting  with  intent  so  to  embezzle  and 
convert,  the  bullion,  money,  notes,  bank-notes,  checks,  drafts, 
bills  of  exchange  or  other  security  for  money,  by  a  cashier 
or  other  officer,  clerk  or  agent  of  such  person,  bank,  incorpo- 
rated com])any,  or  corporation  or  copartnership,  it  shall  be 
sufficient  to  allege,  generally,  in  the  indictment,  an  embezzle- 
ment, fraudulent  conversion  or  taking,  Avith  such  intent,  funds 
of  such  person,  bank,  incorporated  company  or  copartnershii). 
to  a  certain  value  or  amount,  without  specifying  any  particu- 
lars of  such  embezzlement.  Indeed,  in  the  very  nature  of  the 
crime,  it  would  be  impracticable  in  most  v?;ises  to  do  more. 
Tiie  case  being  considered  shows,  in  a  marked  degree,  the 
necessity  for  the  rule  provided  by  statute,  otherwise  it  would 
bo  difficult  to  make  the  proof  and  the  allegations  of  the  in- 
dictment correspond.  On  the  trial  the  same  liberal  rule  for 
the  detection  and  punishment  of  persons  guilty  of  misconduct, 
Vol.  IV  — 15 


226 


AMERICAN  CRIMINAL  REPORTS. 


by  reason  of  their  confidential  relations  with  their  cniployor, 
l)revails,  for  it  is  provided  in  the  same  section  of  tlie  Criminal 
Code,  evidence  may  be  given  of  any  such  embezzlement,  f  i  aiul- 
ident  conversion  or  taking,  with  such  intent ;  and  it  sliall  be 
sufficient  to  maintain  the  charge  in  the  indictment  if  it  is 
proved  that  any  bullion,  money,  note,  bank-note,  check,  draft, 
bill  of  exchange,  or  other  security  for  money,  of  such  person, 
bank,  incorporated  company  or  copartnership,  of  whatever 
value  or  amount,  Avas  fraudulently  embezzled,  converted  or 
taken,  with  such  intent,  by  such  cashier,  or  other  officer,  clerk, 
agent  or  servant.  Under  this  rule,  which  is  certainly  a  Avise 
one,  it  was  proper  the  court  should  permit  all  the  evidence  of 
what  defendant  did  by  reason  of  his  confidential  relations  with 
the  banking  firm  whoso  clerk  he  was  to  go  to  the  jury,  as  was 
done,  and  if  the  jury  found,  from  the  whole  evidence,  any  funds 
or  securities  for  money  had  been  embezzled  or  fraudulently 
converted  to  his  own  use  by  defendant,  it  was  sufficient  to 
maintain  the  charge  of  embezzlement  as  that  crime  is  defined 
in  the  seventy-fifth  and  seventy -sixth  sections  of  the  Criminal 
Code.  Any  other  rule  would  render  it  exceedingly  difficult 
to  secure  a  conviction  under  either  of  these  sections  of  the 
statute.  The  view  talcen  by  the  defense  of  this  statute  is  too 
narrow  and  technical  to  be  adopted.  It  has  a  broader  mean- 
ing, and,  when  coi-i-ectly  read,  it  will  embrace  all  wrongful 
conduct  by  confidential  dorks,  agents  or  servants,  and  leave 
no  opportunity  for  escape  from  just  punishment  on  mei'c  tech- 
nical objections  not  alFecting  tho  guilt  or  innocence  of  the 
party  accused.  Tho  cases  of  Krihs  v.  The  People,  82  111.,  425, 
and  Goodhue  v.  The  People,  0-t  id.,  3T,  cited  by  the  defense, 
were  prosecutions  for  eml)ozzlcment  under  other  sections  of 
tho  Criminal  Code,  and  illustrate  no  phase  of  the  case  being 
considered.  There  was  no  error  in  the  court  refusing  to 
require  the  prosecution  to  elect  for  what  particular  act  of  em- 
bezzlement a  conviction  would  bo  asked. 

The  last  ground  of  objection  is,  tho  verdict  is  without  evi- 
dence, and  against  the  law.  Ordinarily,  whether  there  is 
evidence  to  warrant  a  conviction  is  a  question  for  the  jury,  the 
court  taking  cai-e  always  to  see  that  no  manifest  injustice  is 
done,  With  that  view  the  evidence  has  been  considered.  It 
is  seen  the  testimony  of  other  witnesses,  taken  in  connection 


care,' 


KER  V.  THE  PEOPLE. 


227 


with  defendant's  letter  to  the  banking  firm,  written  on  the  eve 
of  his  departure,  with  the  schedule  attached  of  securities  and 
money  embezzled,  constitutes  ample  proof  of  the  corpus  delicti. 
It  would  answer  no  good  purpose  to  enter  upon  an  analysis  of 
the  evidence, —  it  is  sulficient  to  state  the  conclusion  reached. 
But  Avhether  the  verdict  is  contrary  to  law  is  a  question  for 
the  court,  and  that  has  been  fully  considered.  The  objection 
in  this  regard  goes  to  the  extent  that,  admitting  all  the  evi- 
dence tends  to  prove,  it  does  not  constitute  embezzlement, 
under  the  seventy-fifth  section,  or  any  other  section,  of  the 
Criminal  Code.  The  argument  on  this  branch  of  the  case  is 
based  on  a  misconstruction  of  that  section  of  the  Criminal  Code 
defining  the  crime  of  embezzlement.  There  are  two  counts  in 
the  indictment  that  charge  defendant  with  embezzlement.  On 
examination  it  Avill  be  seen  they  are  both  substantially  in  the 
language  of  the  statute,  and  tliat  is  all  the  law  requires.  In 
the  first  count  it  is  charged  defendant  embezzled  securities  for 
money,  gold  coin  and  other  funds  and  property  of  Preston, 
Kean  &  Co.,  "then  and  thei^e  intrusted"  to  defendant;  and  in 
the  second  count  it  is  charged  defendant,  being  then  and  there 
a  clerk  in  the  employ  of  Preston,  Kean  &  Co.,  fraudulently  and 
feloniously  did,  without  then  and  there  having  the  consent  of 
such  iirm,  embezzle  and  fraudulently  convert  to  his  OAvn  use  a 
large  auKnmt  of  the  personal  good^,  funds  and  money, —  all  of 
which  is  described  with  sufficient  ])articularity, —  wliich  per- 
sonal goods,  money  and  funds  "  then  and  there  came  to  the 
possession"  of  defendant  "  by  virtue  of  such  employment."  It 
will  be  observed  the  seventy -fifth  section  of  the  statute,  under 
which  the  second  count  in  the  indictment  Avas  eA'idently  framed, 
nuikes  it  an  offense  for  a  person  occupying  such  confidential 
relations  to  embezzle  property  of  his  eniployer,  or  that  of 
another  that  comes  to  his  possession  or  under  his  care,  or  to 
secrete  the  same  Avitli  intent  to  do  so,  by  "  viz'tue  of  his  em])loy- 
inont"  Avith  the  owner  or  owners.  The  Avords  "under  his 
care,"  found  in  the  seventy-fifth  section  of  the  statute,  are  not 
used  in  this  second  count  of  the  indictment,  and  it  is  contended 
the  proof  fails  to  show  the  funds  and  property  alleged  to  have 
been  embezzled  were  ever  in  the  possession  of  defendant  by  vir- 
tue of  his  employment,  and  for  that  reason  it  is  said  he  is  not 
fiuilty  under  this  c>unt.    The  Avord  "care,"  as  used  in  the 


228 


AMERICAN  CRIMINAL  REPORTS. 


statute,  is  the  e;iuivalont  of  "  custo:ly,"  and  may  mean  "charge," 
"  safe-keeping,"  '•  preservation,"  '•  security,"  and  it  would  seem 
it  was  in  that  sense  it  was  used  in  the  statute.  "  Possess io)i,''^ 
as  used  in  the  same  section,  has  perhaps  a  slightly  different  and 
broader  meaning  than  the  word  "  care,"  but  it  may  also  mean 
'•  to  keep,"  "  to  take  or  seize  hold,"  "  to  hold  or  occupy,"  as  the 
owner  of  property  would  or  might  do.  It  matters  little  whether 
one  or  botli  words  were  used  in  the  indictment.  A  close  read- 
ing of  the  testimony  will  show  tlie  funds  embezzled  were  quite 
as  much  in  the  possession  of  defendant  as  under  his  care.  It  is 
idle  to  say,  in  view  of  the  relations  defendant  sustained  to  the 
banking  firm,  as  disclosed  by  the  testimony,  that  the  funds  and 
securities  in  the  vaults  were  not  in  possession  of  defendant  and 
other  pereons  employed  about  the  bank,  and  who  had  access  to 
such  funds  and  securities,  for  one  purpose  or  another.  If  tlie 
indictment  cannot  be  maintained  on  the  ground  the  funds  and 
securities  embezzled  were  in  the  possession  of  defendant,  as  tliat 
term  is  used  in  the  statute,  by  virtue  of  his  employment,  it 
could  not  had  it  been  alleged  they  were  under  his  care,  or  had 
it  been  charged  they  came  both  to  his  possession  and  under 
his  care  by  virtue  of  his  employment ;  and  the  case  would  be 
presented  where^  a  clerk  converted  to  his  own  use  $14,000  of 
his  employer's  money  and  securities,  and  yet  guilty  of  no 
crime,  within  the  meaning  of  this  section  of  the  statute.  So 
narrow  a  construction  as  that  insisted  upon  would  render  nuga- 
tory this  section  of  the  statute  which  defines  embezzlement  by 
clerks  and  confidential  agents. 

It  seems  to  be  claimed  as  to  the  money,  bonds  and  property 
alleged  to  have  been  embezzled  of  his  employers,  the  taking  of 
them  out  of  their  vaults  by  defendant  was  larceny  at  common 
law,  and  therefore  couhl  not  be  embezzlement,  under  the  sev- 
enty-fifth section  of  the  Criminal  Code.  No  such  subtle  rea- 
soning as  that  will  satisfy  the  common  understanding.  It  is 
not  denied  that  defendant  converted  to  his  own  use  large  sums 
of  money  and  securities  belonging  to  the  bank  while  he  was  in 
its  employ  as  a  clerk,  and  that  such  funds  did  in  some  way 
come  to  his  possession.  How  did  he  come  to  get  possession  of 
such  funds  and  securities  for  money,  if  it  were  not  by  virtue  of 
his  employment?  Had  he  not  been  in  the  employ  of  this 
banking  house  he  could  have  had  no  access  to  thoir  vaults.    No 


KER  V.  THE  PEOPLE. 


229 


attempt  will  be  made  to  ascertain  defendant's  c::act  relation 
with  the  bank.  It  is  enough  to  know  his  position,  whatever  it 
was,  gave  him  access,  for  some  purposes  at  least,  to  the  vaults 
wiiere  the  funds  and  securities  were  kept,  and  that  brought  the 
funds  and  securities  embezzled  into  his  possession,  or,  Avhat  is 
really  the  same  thing,  under  his  care,  in  a  measure,  by  virtue 
of  employment.  It  was  simply  by  virtue  of  his  employment, 
and  not  otherwise,  that  he  got  possession  of  his  employers' 
niouoy  and  securities,  and  converted  the  same  to  his  own  use, 
and  that  is  embezzlement,  under  the  seventy-fifth  section  of 
the  Criminal  Code.  It  is  that  for  which  he  was  indicted  and 
convicted,  and  it  is  the  offense  defined  by  the  statute. 

It  is  to  l)e  observed  the  statute  of  this  state  defining  the 
(lime  of  embezzlement  is  much  more  comprehensive  than  any 
Kn<>]ish  statutes  on  the  same  subject  that  we  have  examined, 
and  especially  that  section  which  defines  embezzlement  by  a 
clerk  or  confidential  agent  who  converts  to  his  own  use  funds 
belonging  to  his  emi)loyer  which  may  come  to  his  possession 
or  under  his  care  by  virtue  of  his  employment,  and  the  decis- 
ions of  the  English  courts,  construing  their  own  statutes,  do 
not  in  any  Avay  assist  to  a  correct  understanding  of  the  stat- 
utes of  this  state  on  the  same  subject.  Much  of  what  is  said 
hy  text-writers  to  which  the  attention  of  the  court  has  been 
called  was  said  Avith  reference  to  English  statutes,  which  are 
niatei'ially  ditfei'ent  from  that  section  of  the  statute  of  this 
state  under  which  defendant  was  indicted.  On  account  of  the 
dissimilarity  of  the  statutes,  it  has  not  been  thought  necessary 
to  remark  upon  English  .embezzlement  statutes,  nor  upon  the 
decisions  of  English  courts  construing  them.  Decisions  have 
boon  rendered  by  courts  of  some  of  our  sister  states  construing 
statutes  substantially  like  section  75  of  the  Criminal  Code 
of  this  state,  that  make  the  embezzlement  of  money  or  per- 
sonal goods  larceny,  among  Avhich  are  27ic  l*eople  v.  Slwf- 
man,  10  AWmd.,  299;  T/ie  l\opU  v.  JMfon,  15  id.,  581,  and 
Loicenthal  v.  IVic  People,  32  Ala.,  589.  So  much  of  the  reason- 
ing in  the  opinions  in  the  cases  cited  as  is  apjdicable  to  the 
present  decision  may  be  read  as  being  in  harmony  Avith  the 
views  expressed  in  this  opinicm. 

Xo  error  affecting  the  merits  of  the  case  appearing  in  the 
record,  the  judgment  is  affirmed.  Judgment  affirmed. 


230 


AMERICAN  CRIMINAL  REPORTS. 


Commonwealth  v.  Moore. 


False  pretense  :  Promise  ■ 


(99  Pa.  St.,  570.) 

—  Indictment  —  Constructive  larceny  —  Gen- 
eral verdict. 


1.  False  tuetense— Promise  to  perform  some  act  in  the  future.— 

A  false  pretense,  to  be  within  the  statute,  must  be  the  assertion  of  an 
existing  fact,  not  a  promise  to  perform  some  act  in  the  future. 

2.  Indictment. —  Tlie  particular  act  alleged  in  the  indictment  was  the  pro- 

curing *i  the  prosecutor's  indorsement  of  the  defendant's  promissory 
note,  and  the  false  pretense  chai-ged  consisted  in  the  defendant  repre- 
senting to  the  pi-osecutor  that  he  would  use  the  note  so  indorsed  to  take 
up  and  cancel  another  note  of  the  same  amount  then  about  maturing, 
and  uiKJn  wliicli  the  prosecutor  was  liable  as  indorser,  and  for  no  other 
purpose,  and  the  indictment  charged  that  the  defendant,  instead  of 
uyiiig  it  for  this  purpose,  as  he  pretended  he  would,  used  the  same  for  liis 
own  private  purpose.  Held,  that  the  indictment  did  not  set  out  an  bi- 
dictable  false  pretense  under  the  statute. 

8.  Constructive  larceny. —  By  proviso  of  section  111  of  the  act  of  March 
31,  1800  (P.  L.,  410),  it  is  provided  "  that  if,  upon  the  trial  of  any  person 
indicted  for  such  a  misdemeanor  (false  pretenses),  it  shall  be  proved  that 
he  obtained  the  jjroiierty  in  question  in  such  manner  as  to  amount  in 
law  to  lai"ceny,  he  shall  not,  by  reason  thereof,  be  entitled  to  be  acquit  tod 
of  such  misdemeanor,"  etc.  Held,  that  the  distinction  between  tlio 
offenses  of  constructive  larceny  and  cheating  by  fabe  pretenses  is  ckarly 
defined,  and  as  neither  of  the  counts  in  the  indictment  would  sustain  a 
charge  of  larceny,  the  defendant  could  not  be  convicted  of  that  oireiise. 

4.  General  verdict  op  guilty. — A  general  verdict  of  guilty,  ui)on  an 
indictment,  is  a  findmg  only  of  the  facts  sufficiently  pleaded. 

Certiorari  to  the  court  of  quarter  sessions  of  Dchiwiu-e 
county.  Indictment  of  llobert  M.  More  for  cheating  by  false 
pretenses.    Plea,  not  guilty. 

V.  Gilpin  liohlnsoH,  district  attorney,  for  the  commonwealth. 
E.  II.  Hall,  for  the  defendant  in  error. 

Mr.  Justice  Paxson  delivered  the  opinion  of  the  court  Feb- 
ruary 27,  1882. 

The  only  question  presented  by  this  record  is,  whether  tlio 
indictment  sets  forth  an  indictable  offense.  It  contains  two 
counts,  in  each  of  which  the  defendant  below  is  charged  with 
cheating  by  false  pretenses.  The  particular  act  alleged  was 
the  procuring  of  the  prosecutor's  indorsement  of  the  defend- 
ant's promissory  note,  and  the  false  pretense  charged  consisted 


COMMONWEALTH  V.  MOORE. 


231 


in  his  representing  to  the  prosecutor  that  he  would  use  the 
note  so  indorsed  to  take  up  and  cancel  another  note  of  the 
same  amount  then  about  maturing,  and  upon  which  the  prose- 
cutor Avas  liable  as  indorser.  In  other  words,  the  note  was 
ji'iven  in  renewal  of  another  note  of  like  amount,  and  the  in- 
dictnient  charges  that  the  defendant,  instead  of  using  it  for 
this  purpose,  as  he  promised  to  do,  procured  it  to  be  discounted, 
and  used  a  portion  of  the  proceeds  for  other  purposes. 

A  false  pretense,  to  be  wutliin  the  statute,  must  be  the  asser- 
tion of  an  existing  fact,  not  a  promise  to  perform  some  act  in 
the  future.  The  man  who  asserts  that  he  is  the  owner  of  a 
house  states  a  fact,  and  one  that  is  calculated  to  give  him  a 
credit.  But  a  mere  failure  to  keep  a  pro:iiise  is  another  and 
very  different  affair.  That  occurs  whenever  a  man  fails  to  pay 
his  note. 

It  is  true  Chief  Justice  Gibson  doubted,  in  Commomcealth  v. 
Bio'dlch,  2  Barr,  at  page  104,  whether  every  naked  lie  by 
wliich  a  credit  has  been  gained  is  not  a  false  pretense  within 
the  statute.  This  doubt  has  run  its  course,  and  has  long  since 
ccastsl  to  disturb  the  criminal  law  of  the  state.  There  was 
notliiiig  in  Commomcealth  v.  Biirdlch  to  suggest  such  doubt, 
as  the  deroiuhint  had  wilfully  misrepresented  that  he  had  a 
capital  of  $8,000  in  right  of  his  wife,  while,  in  all  the  cases 
cited  therein,  there  was  a  misrepresentation  as  to  existing 
facts,  by  means  whereof  a  credit  was  obtained.  The  decisions 
upon  tills  subject  are  uniform,  and  it  would  be  an  affectation  of 
learning  to  cite  the  cases.  Many  of  them  may  be  found  in  the 
foot-note  to  Purdon. 

In  the  case  in  hand,  there  was  no  assertion  of  an  existing 
fact.  Nor  was  there  anything  done  by  which  even  a  credit 
was  given.  The  credit  had  been  obtained  when  the  original 
note  was  indorsed ;  the  pi'esent  note  was  indorsed  in  lieu  of 
and  for  the  ])urpose  of  taking  up  the  original ;  the  failure  to 
use  it  for  such  purpose  was  certainly  a  dishonest  act  on  the 
part  of  the  defendant,  but  we  do  not  think  it  punishable  under 
the  statute  defining  false  pretenses. 

It  was  urged,  however,  that,  if  it  was  not  cheating  by  false 
pretenses  under  the  statute,  it  was  constructive  larceny,  and 
therefore  within  the  proviso  of  section  111  of  the  act  of  31st 
starch,  1860  (P.  L.,  410),  which  is  as  follows :  "  Provided,  always, 


232 


AMERICAN  CRIMINAL  REPORTS. 


that  if,  upon  the  trial  of  any  person  indicted  for  such  a  mis- 
demeanor (false  pretenses),  it  shall  be  proved  that  he  obtained 
the  property  in  question  in  such  manner  as  to  amount  in  law 
to  larceny,  ho  shall  not,  by  reason  thereof,  be  entitled  to  be 
acquittetl  of  such  misdemeanor;  and  no  person  tried  for  such 
misdemeanor  shall  be  liable  to  bo  afterwards  prosecuted  for 
larceny  upon  the  same  facts." 

The  fourth  assignment  of  error  avers  that  "The  learned 
court  erred  in  not  holding  that  the  facts  set  forth  in  the  indict- 
ment, and  proved  on  the  trial,  showed  that  the  defendant  ob- 
tained the  pro|)erty  in  question  in  such  manner  as  in  law  would 
amount  to  larceny,  and  in  not  giving  judgment  for  the  com- 
monwealth," etc. 

AVti  do  not  think  it  necessary  to  discuss  the  line  of  cases 
cited  in  the  able  and  interesting  argument  of  the  learned  dis- 
trict attorney,  detining  the  distinction  between  the  offenses  of 
cheating  by  false  pretenses,  an<l  constructive  larceny.  AVliile 
the  distinction  is  a  nice  one,  it  is,  nevertheless,  clearly  defined. 
The  difficulty  upon  this  head  is  not  in  the  law,  but  in  the  appli- 
cation of  the  law  to  the  facts  of  a  particular  case.  We  are 
not  called  upon  to  pursue  this  inquiry  in  tiio  present  instance. 
It  requires  but  a  moment's  reflection  to  see  tluit  we  could  not 
reverse  the  court  below  upon  this  ground.  How  can  we,  as  an 
appellate  court,  say  whether  it  was  proved  upon  the  trial  be- 
low that  the  defendant  obtained  the  property  in  question  in 
such  nuinner  as  to  amount  in  law  to  larceny,  when  not  one 
word  of  the  evidence  is  before  us?  IJut,  it  is  said,  the  jury  hav- 
ing convicted  the  defendants  of  the  ofreuse  of  cheating  by  false 
pretenses,  we  must  assume  that  the  facts  proved  amounted  to 
larcenv.  This  does  not  follow.  A  general  verdict  of  Lniiltv 
upon  the  indictment  is  a  finding  only  of  the  facts  sufficiently 
pleaded.  Neither  of  the  counts  would  sustain  a  charge  of 
larceny.  The  first  count  contains  no  averment  that  Horace  P. 
Green,  the  prosecutor,  was,  or  ever  had  been,  the  owner  of  the 
note  in  question,  and  if  never  the  owner,  it  could  not  have  been 
stolen  from  him.  The  second  count  was  evidently  intended  to 
cover  both  offenses,  but  such  criminal  pleading  is  rarely  a  success, 
and  certainly  is  not  so  in  this  case.  It  contains  an  averment 
at  the  close,  that  the  said  note  was  "  then  and  there  the  prop- 
erty of  the  said  Horace  P.  Green."    Unfortunately  for  this 


COMMONWEALTH  v.  MOORE. 


233 


averment,  the  prior  portions  of  the  same  count  show  the  f.act 
distinctly  that  tlie  note  in  question  was  the  note  of  the  defend- 
ant, drawn  by  him  in  favor  of  the  prosecutor,  and  by  the 
latter  indorsed  for  the  accommodation  of  the  defendant  and 
handed  back  to  him.  It  was,  therefore,  the  property  of  the 
defendant  and  not  of  the  prosecutor.  The  secontl  count  con- 
tradicts itself  upon  the  facts,  and  the  finding-  of  the  jury  is 
wliolly  insufficient  to  enable  us  to  say  the  facts  proved  upon 
the  trial  amounted  to  larceny. 

We  are,  therefore,  of  opinion  that  the  learned  judge  of  the 
court  below  committed  no  error  in  arresting  the  judgment,  and 


ins  ruling  must  be 


Affirmed. 


Note.—  Obtaining  money  under  false  pretenses  is  not  sustained  by  proof 
that,  by  the  false  pretense  alleged,  he  procured  the  satisfiution  of  his  indebt- 
edness to  another,  though  sufficient  to  sustain  an  action  by  the  defrauded 
party  against  him  for  money  lent.  The  money  must  have  been  actually,  and 
not  merely  impliedly  or  constructively  obtained,  and  must  have  come  into 
the  (Icfeni hint's  possession.    Jamison  v.  The  State,  37  Ark.,  445. 

An  information  which  charges  in  substance  that  on  November  5,  1883,  at 
the  city  of  La  Crosse,  tlie  defendant  falsely  pretended  to  one  Frank  Thayer 
tliat  he  was  a  contra(;tor,  engaged  in  the  business  of  teaming  at  Stevens 
Point,  in  this  state,  and  desired  to  employ  teamsters  to  work  for  him  at  that 
])liR'e  during  the  following  winter;  tiiat  he  made  certain  other  false  pre- 
tenses, specifled  in  the  information,  to  Thayer,  to  satisfy  the  latter  of  the 
truth  of  such  statements,  and  i)roposed  to  employ  Thayer  to  go  to  Stevens 
Point  and  work  for  him  as  a  teamster;  that  thereupon  Thayer  engaged  to 
do  so;  that  Gross  then>falsely  j^retended  that  he  had  not  sufficient  money  to 
pay  Thayer's  railroad  fare  to  Stevens  Point,  and  desired  Thayer  to  advance 
him  a  sufficient  amount  to  jjiu-chase  the  necessaiy  railroad  ticket,  and  agreed 
to  return  the  money  when  Thayer  should  reach  Stevens  Point ;  that  there- 
upon Thayer  advanced  him  $8  for  that  purpose.  The  information  specific- 
ally alleges  that  each  and  all  such  pretenses  were  false,  to  the  knowledge 
of  the  defendant,  and  were  so  made  with  intent  to  defraud ;  but  that 
Tliayer  lielieved  them  to  be  true  and  advanced  the  money  on  the  faith  of 
them.  This  information  undoubtedly  charges  a  criminal  offense  under  sec- 
tion 4423,  R.  S.  This  is  perfectly  obvious  from  a  perusal  of  the  informa- 
tion, and  no  discussion  can  make  it  plainer.  State  v.  Gross,  21  N.  W.  R. 
(Wis.),  803. 

In  State  v.  Foolcs,  21  N.  W.  R.  (Iowa),  561,  it  is  held  that  the  representa- 
tion of  a  party  wlio  borrowed  money,  that  his  brother  was  to  ai'rive  with 
money,  coupled  with  a  promise  to  use  it  in  payment  of  the  sum  borrowed, 
amounts  to  a  prt^tense  that  he  had  the  money,  and  may  be  alleged  in  the 
indictment  and  i)roved  on  the  trial. 

To  support  a  conviction  it  need  not  appear  that  the  false  pretenses  were 


234 


AMERICAN  CRIi'INAL  REPORTS. 


the  only  inducement  for  giving  credit  or  delivering  property  to  the  aocnsod. 
It  is  sufficient,  if  they  had  such  effect,  that  without  their  influence  upon  tlio 
mind  of  the  party  defrauded,  he  would  not  have  given  the  credit. 

If  the  false  pretenses  are  made  with  the  design  of  deceiving,  and  thoreliy 
obtaining  credit  or  property,  and  have  that  effect,  the  guilty  party  cannot 
escape  on  the  ground  of  the  weak  credulity  of  his  victim. 


State  v.  Mundat. 

(78  N.  C,  460.) 

False  pnETENSEs:  Sale  of  land. 

An  indictment  for  obtaining  goods  under  false  pretenses  can  bo  maintained 
against  one  avIio  sells  and  conveys  land  for  a  price,  by  falsely  represent- 
ing it  to  bo  free  from  incumbrances  and  the  title  thereto  perfect,  wlii-n 
the  land  is  in  fact  incumbered  with  a  mortgage  known  to  the  defend- 
ant. 

Attorney-General,  for  the  state. 
Mr.  G.  N.  Folh,  for  the  defendant. 

Ekadk,  J.  A.  says  to  B.,  here  is  a  tract  of  land  which  bo- 
longs  to  me,  and  to  which.  I  have  a  perfect  title,  free  from  in- 
cumbrance; I  will  sell  it  to  you  and  make  you  a  perfect  title 
for  ^300.  B.  says  I  will  give  it,  and  he  does  give  it.  It  turns 
out  that  A.  had  no  title,  or  an  incumbered  one,  and  that  he 
knew  it  at  the  time,  and  intended  to  cheat  and  defraud  B.  out 
of  his  money.  And  B.  was  defrauded.  Is  that  a  false  pre- 
tense indictable  in  A.  ?  The  defendant  says  it  is  not,  because 
false  pretense  is  akin  to  larceny,  and  that  land  is  not  the  subject 
of  larceny,  and  that  neither  land  or  any  transaction  conveying 
land  is  the  subject  of  false  pretense.  And  for  this,  State  v. 
Burrows,  11  Ired.,  477,  is  cited. 

In  that  case  the  defendant  had  by  a  false  pretense  induced 
the  prosecutor  to  convey  to  him  twenty  acres  of  land,  and  the 
charge  was  '*  to  cheat  and  defraud  the  prosecutor  of  twenty 
acres  of  land."  It  was  held  that  to  obtain  land  by  false  pi'c- 
tense  was  ^  fraud,  but  that  it  was  not  indictable  under  the 
statute  which  embraced  only  such  personalities  as  were  the 
subjects  of  larceny. 

How  does  that  affect  this  case?    Here  is  no  charge  of  ob- 


taining li 
false  i)ret( 

It  is  su/ 
tion,  and  ' 
may  bo  w 
punished 
indictable 
not  indici 
ciicat  and 

Wo  wei 
and  his  bi 
other  alio; 
called  to  i 
ment  is  n( 

Tiiere  ii 
tilied,  to  ti 
Htate  V.  P 

Per  Cu 

Note.— Y 
falsely  and  \ 
bfloiifjs  to  1 
he  will  w.r,  1 
!ij?aii>'  him 
.  w  liicli 

./T,  ;s;{  M( 

lu  uii  iiidi 
|ii'operi     pa 

Toe  lain 
Stankij,  01 

When  it 
tenses,  it  is 
proof  of  pa 
The  State  v 

Wlien,  or 
horse  repres 
for  propert; 
not  the  ho 
he  obtained 
the  indictni 
e(jual  in  va 
the  Charlei 
had  the  rep 
the  party  ii 
should  be  r 


STATE  V.  MUNDAY. 


sm 


taining  land  by  a  false  pretense,  but  of  obtaining  money  by 
false  pretense,  and  surely  money  is  the  subject  of  larceny. 

It  is  suggested  that  title  to  land  is  often  an  abstruse  ques- 
tion, and  that  one  who  is  not  a  lawyer,  and  indeed  one  who  is, 
may  be  innocently  mistaken  about  it,  and  therefore  may  be 
punished  for  an  innocent  act.  Not  at  all.  K  miHtake  is  not 
intlictable.  K  ^retcme  is  not  indictable.  A.  fahe  j^retense  is 
not  indictable.  It  must  be  a  false  pretense  with  intent  to 
cheat  and  defraud,  and  which  does  cheat  and  defraud. 

We  were  not  favored  with  an  argument  for  the  defendant, 
luul  his  brief  refers  only  to  State  v.  Butwows.  If  there  is  any 
otiier  allegcKl  defect  in  the  indictment,  our  attention  was  not 
called  to  it,  and  w^c  have  discovered  none,  although  the  indict- 
ment is  not  very  well  framed. 

There  is  error  iti  the  arrest  of  judgment.  This  will  be  cer- 
tified, to  the  end  tliat  there  may  bo  judgment  upon  the  verdict. 
Htate  V.  r /lifer,  05  N.  C,  321. 

Per  Curiam.  Judgment  reversed. 


Note. —  Wliero,  upon  an  excliange  of  personal  property,  one  of  the  parties 
falsely  and  fraudulent! j'  pretends  that  the  property  which  he  is  parting  with 
bt.'I(jii^s  to  hiuisolf  and  is  unincumbered,  and  at  the  same  time  afHrms  that 
lie  will  warii'  '  H  against  all  incumbrances,  an  indiciment  may  be  sustained 
i^'aii  liim,  11  ilin  fal^c  pretense,  and  not  the  waiTanty,  wiis  the  induce- 
\i  liieh  opuratfMl  upon  the  other  party  to  make  the  exchange.    State  v, 

,ir,  ;W  ^ic,  40S      'oin.  v.  Lincoln,  11  Allen,  233. 

lu  an  indictmeui  for  such  an  offense,  it  is  not  necessary  to  aver  that  the 
)>iopei'     parted  with  by  the  defendant  was  of  any  value.    Id. 

To  I  lain  a  trade  by  false  pretenses  comes  within  the  statute.  State  v. 
Stmhu,  01  Me.,  157. 

When  it  is  alleged  goods  v  :c  obtained  by  several  specified  false  pre- 
tenses, it  is  not  necessary  to  prove  the  whole  of  the  pretenses  charged ;  but 
proof  of  part  thereof,  and  that  the  goods  were  obtained  thereby,  is  sufficient. 
The  State  v.  Mills,  17  Me.,  211. 

When,  on  the  trial  of  an  indictment,  it  was  proved  that  the  owner  of  a 
horse  represented  to  another  at  his  horse,  which  he  offered  in  exchange 
for  property  of  the  other,  waw  called  the  Charley,  when  he  knew  that  it  was 
not  the  horse  called  by  that  name,  and  that  by  such  false  representation 
he  obtained  the  property  of  the  other  person  in  exchange,  it  was  held  that 
the  indictment  was  sustained,  although  the  horse  said  to  be  the  Charley  was 
ecjual  in  value  to  the  property  received  in  exchange,  and  as  good  a  horse  as 
the  Charley,  The  court  say:  "The  horse  called  the  C/mr?ej/ might  have 
had  the  reputation  of  possessing  qualities  which  rendered  it  desirable  for 
tlie  party  injured  to  become  the  owner  of  him.  ...  If  the  construction 
should  be  narrowed  to  coses  which  might  be  guarded  against  by  common 


'2M 


AMERICAN  CRIMINAL  REPORTS. 


lu-iulence,  lap  woak  and  imbecile,  the  usual  victims  of  these  pretenses,  would 
be  left  unprotecteil."    The  State  v.  Mills,  17  Me.,  211. 

It  is  as  criminal  to  defraud  the  unwary  as  the  wary.  Johnson  v.  The 
State,  30  Ark.,  242. 

If  the  party  deceived  by  the  false  pretenses  is  proved  to  have  been  un- 
acquainted with  the  kind  of  property  passed  upon  him,  it  is  proper  for  a 
jury  to  consider  that  fact  in  determining  the  quo  animo  of  the  party 
accused.     Cowan,  v.  The  People,  14  111.,  348. 

It  matters  not  whether  the  goods  were  obtained  immediately  by  the  false 
pretense,  or  mediately  by  a  contract,  to  which  the  false  pretense  induced 
the  prosecutor  to  coiisent,  provided  there  be  a  casual  relation  between  the 
contract  and  the  false  pretense.    Wharton's  C.  L.,  8th  ed.,  sec.  1180. 

Where  two  are  indicted  for  obtaining  money  under  false  pretenses,  evi- 
dence that  one  of  them,  with  the  knowledge,  approbation,  concurrence  and 
direction  of  the  other,  made  the  false  pretenses  charged,  warrants  the  con- 
viction of  both.    Wharton's  C.  L.,  8th  ed.,  sec.  1171. 


State  of  Nevada  v.  District  Court. 

(ICNev.,  76.) 
Fine  and  impkisonment  :  Costs  — Certiorari. 

1.  Fine  and  imprisonment — Costs  —  Judgment  for. — Relator  was  con- 

Aictod  of  an  assault.  The  court  imi>osed  a  fine  of  $500,  taxed  the  costs 
at  !{!300.50,  and  ordered  relator  to  be  imprisoned,  ass  by  statute  provided, 
for  the  fine.  Hchi,  that  section  46  of  the  act  concerning  crimes  and 
jiunishment  (I  Comp.  L.,  2352)  authorized  the  imj)osition  of  the  line, 
and  section  074  of  the  criminal  practice  act  (id.,  2290)  authorized  the 
judgment  for  costs. 

2.  JiDGMENT— How  enforced.— Relator  could  be  imprisoned  for  the  line, 

The  judgment  for  costs  can  be  enforced  only  by  execution. 

3.  Certiorari  —  Leoauty  of  costs  not  reviewable. —  If  the  court  erred 

in  allowing  any  costs  that  were  not  taxable  against  the  I'ehuor,  it  was 
not  an  excess  of  jurisdiction,  and  its  action,  in  tliis  resi)ect,  cannot  be 
reviewed  upon  certiorari. 

Ca'tiorari  before  the  Supreme  Court. 
Tlie  facts  appear  in  the  opinion. 

C.  S.  Vari((/i,  for  rehitor. 

M.  A.  JIurj>h]/,  attorney-general,  for  respondent. 

By  the  Court,  ITawley,  J. 

Kelator  contends  that  the  district  court  exceeded  its  juris- 
diction in  rendering  the  following  Judgment:    "Defendant, 


STATE  OF  NEVADA  v.  DISTRICT  COURT. 


237 


J.  J.  Quinn,  having  been  duly  convicted  of  the  crime  of  an 
assault,  it  is  hereby  ordered,  adjudged  and  decreed  that  the 
said  J.  .T.  Quinn  do  pay  a  fine  of  8''>00,  gold  coin,  and  costs  of 
tliis  action,  amounting  to  $300.50,  making  in  all  $800.50,  gold 
coin;  and  it  is  furtlier  ordered  that  the  defendant  be  confined 
in  tlie  common  jail  of  "Washoe  county,  Nevada,  one  day  for 
cacli  two  dollars  of  said  fine,  so  long  as  the  whole,  or  any  part 
thereof,  sliall  remain  unpaid." 

From  the  views  we  entertain  of  this  case,  it  is  unnecessary 
to  decide  the  question,  argued  by  relator's  counsel,  whether 
tlie  amendment  to  section  1  of  the  act  in  relation  to  fines 
(Stat.  1S()7, 44),  as  made  in  tlie  amended  act  (Stat,  1809,  9G),  is 
unconstitutional  or  not.  There  are  other  sections  of  the  stat- 
ute, against  wliich  no  objections  have  been  urged,  that  gave 
the  court  authority  to  render  the  judgment.  Section  46  of  the 
act  concerning  ci'imes  and  punishments  (1  Comp.  L.,  2352) 
authorized  the  imposition  of  the  fine,  and  section  G74  of  the 
criminal  practice  act  (id.,  2200)  autliorized  the  judgment  for 
costs.  Tlio  imprisonment  of  relator  is  only  for  the  fine.  He 
couhl  not  be  imprisoned  for  the  cost.  Const.,  art.  1,  sec.  14; 
Thomjhson  v.  State,  10  Ind.,  510.  The  judgment  for  costs  can 
only  be  enforced  and  collected  in  the  same  manner  "  as  costs 
in  civil  cases,"  that  is,  by  execution. 

It  is  claimed  that  the  court  exceeded  its  jurisdiction  in  ren- 
dering judgment  for  the  costs,  because  no  cost  bill  was  regu- 
larly made  out  and  filed,  and  because  "  a  large  proportion  of 
tlie  amount  adjudged  as  costs  .  .  .  was  for  fees  not  allowed 
by  law." 

Although  it  would  be  a  proper,  and  perhaps  the  better,  prac- 
tice to  require  the  prosecution  to  make  out  a  regular  cost  bill 
in  the  same  nuinner  as  is  provided  in  civil  cases,  yet  there  is 
no  provision  of  the  criminal  practice  act  requiring  such  a  course 
to  bo  pursued,  and  in  the  absence  of  any  statute  regulating 
this  uuitter,  we  think  the  court  would  have  the  right  to  deter- 
mine the  amount  of  costs,  as  it  seems  to  have  done  in  this 
case,  from  an  examination  of  the  fees  charged  by  the  ro- 
s])ective  officers. 

The  petition  sets  out,  in  detail,  the  fees  allowed  to  the  several 
officers  which  are  claimed  to  l)e  illegal.  It  does  not  appear 
that  any  motion  was  made  in  the  court  below  to  correct  any 


238 


AMERICAN  CRIMINAL  REPORTS. 


of  those  alleged  irregularities.  "We  are  of  opinion  that  these 
questions  cannot  be  reviewed  upon  certiorari. 

The  question  of  the  imposition  of  costs  antl  the  amount  to 
be  allowed  was  a  proper  matter  for  the  court  to  consider.  It 
had  jurisdiction  to  determine  Avhat  items  of  costs  should  bo 
taxed.  If  any  error  Avas  made  it  could  have  been  I'omodied 
by  a  proper  motion  in  the  district  court.  Relator  was  eniitlod 
to  have  his  day  in  court  and  to  make  any  objections  to  the 
judgment  for  costs,  or  to  the  allowance  of  any  illegal  fees. 
The  fact  that  no  cost  bill  was  regularly  filed  did  not  deprive 
him  of  that  right.  If  the  court  erred  in  allowing  any  costs 
that  were  not  taxable  against  tlic  relator,  it  was  not  an  excess 
of  jurisdiction,  and  its  action  in  this  respect  cannot  be  reviewed 
upon  certiorari.  In  re  Wixom,  12  Nev.,  219,  and  authorities 
there  cited;  Petty  v.  Connty  Court,  45  Cal.,  21r0. 

The  writ  must  be  dismissed.    It  is  so  ordered. 


IIerkon  v.  The  Co^imonwealth. 
(79  Ky.,  38.) 
Fine  and  isiprisonment  :  Verdict. 

1.  ALTEIlN'ATIVr:  PUNISHMENT  —  FINE  AND  IMPRISONMENT,  OR  BOTH.— Wlicn 

a  Btatute  provides  an  alternative  punishment  for  an  offense,  and  further 
provides  that  the  jiiiy,  in  rendering  .1  verdiet  of  guilty,  shall  "  fix  the 
degree  of  punishment  to  he  inflicted,  unless  the  same  he  jixed  hy  law,'' 
the  jury  must  be  instructed  and  required  to  fix  tho  kind  and  extent  of 
the  punishment  within  tlie  limits  prescribed  by  the  law. 

2.  General  verdict  of  guilty. —  It  was  error  for  the  court  to  receive  n 

general  verdict  of  "  guilty  as  charged  in  the  indictment,"  and  assess  a 
line  thereon. 

Appeal  from  Daviess  Cii'cuit  Court. 

W.  W.  Sweeney,  for  appellant. 

/*.  ir.  Ilardin,  attorney-goneral,  for  appellee. 

Judge  IIakois  delivered  the  opinion  of  the  court. 

It  is  provided  by  section  0,  art.  1,  ch.  47  of  the  General  Stat- 
utes, that  the  penalty  for  setting  up,  exhibiting  or  keojiing  faro 
banks  shall  be  a  fine  of  $500  and  costs,  and  imprisonment  until 


HEREON  V.  THE  COMMONWEALTH. 


239 


the  same  are  paid,  or  imprisonment  not  more  than  one  year, 
or  both  such  line  and  imprisonment,  etc. 

The  indictment  was  for  a  violation  of  this  section,  and  upon 
tlie  trial  the  jury,  by  their  verdict,  found  the  appellant  "  guilt}' 
us  charged  in  the  indictment." 

This  verdict  was  received,  and  judgment  rendered  thereon 
by  the  court  for  $500  and  costs,  and  declaring  the  appellant 
infamous,  and  incapable  of  holding  any  office  of  honor,  trust 
or  profit  in  this  commonwealth,  and  forever  disqualified  from 
exercising  the  right  of  suffrage.  To  the  reception  of  the  ver- 
dict and  rendition  of  the  judgment  the  ap|)ellant  objected  and 
excepted. 

By  section  258  of  the  Criminal  Code  it  is  made  the  duty  of 
the  jury,  in  rendering  verdicts  of  guilty,  to  "  fix  the  degree  of 
l)iinishmcnt  to  be  inflicted,  unless  the  same  he  fixed  hrj  law.^^ 

This  section  means  that  if  the  law  lixes  the  punishment, 
leaving  no  room  for  discretion  on  the  part  of  the  jury  as  to  its 
kind  or  extent,  then  the  law  does  not  require  them  to  fix  the 
degree  of  punishment  in  their  verdict. 

l>ut  where  an  alternative  or  indefinite  punishment  is  de- 
nounced by  law  for  a  given  offense,  there  the  jury  must  be 
instructed,  allowed  and  required  to  fix  the  kind  and  extent  of 
the  punishment  within  the  limits  prescribed  by  the  law. 

It  will  be  observed  at  once  that  if  the  jury  had  been  directed 
to  fix  the  punishment  in  this  case,  they  might  have  imprisoned 
the  appellant  without  the  fine  which  the  court  assessed  without 
the  imprisonment.  In  this  class  of  cases,  the  punishment  is 
not  fixed  by  law,  and  the  coui't  erred  in  receiving  tlic  verdict 
and  fixing  the  degree  of  appellant's  punishment. 

The  judgment  is  reversed  and  cause  remanded,  with  direc- 
tions to  set  aside  the  verdict  and  award  a  new  trial. 


Note.— In  tho  case  of  Milton  v.  The  State,  45  Ala,,  50,  the  court  says: 
"  Section  37.17  of  tlio  Revised  Code  requires  tho  jury  to  fix  and  determine 
the  amount  of  the  fine  in  prosecutions  by  indictment.  When  they  omit  to 
iini)08o  tt  fine  for  an  offense,  whicli,  in  addition,  may  be  puuislied  by  im- 
priKonniont  or  hard  lal)or  for  the  county,  by  returning  a  verdict  of  guilty 
niorcly,  tho  power  to  fine  cannot  bo  exercised  by  the  court.  Tlie  defendant, 
by  iipiJOiUing  from  the  county  court,  manifested  his  desire  to  claim  all  the 
benefits  to  be  derived  from  the  trial  by  jury.  Among  these  were  the  de- 
cision by  them,  whether  he  would  be  fined  ut  all  or  not,  and  the  amount." 


240 


AMERICAN  CRIMINAL  REPORTS. 


The  People  v.  D'Aroencour. 

(95  N.  Y.,  624.) 

FohuEKY :  Indietment  —  Evidence  —  Foreign  corporations  —  Practice 

1.  Incorporation  maybe  shown  by  indirect  evidence.— Upon  the  tri;il 

of  an  indictment,  charging  forgery  in  the  second  degree,  in  the  makinj; 
and  engraving  of  a  plate  in  the  form  and  similitude  of  a  note  of  a  hank 
incorporated  in  HaAana,  under  the  laws  of  Spain,  a  witness  on  belialf 
of  the  prosecution  testified  that  he  had  been  at  the  bank  in  Havana  ami 
saw  business  carried  on  there;  tliat  the  bank  issued  notes  which  were 
received  as  money ;  that  he  saw  the  articles  of  association,  and  from  them, 
and  what  he  sjiw  in  a  newspaper,  the  official  organ  of  tlie  government, 
he  believed  the  bank  wa.s  incorporated  under  the  laws  of  Spain.  An 
engraver,  connected  with  the  American  Bank  Note  Company,  also  testi- 
fied that  he  engraved  the  plates  from  which  the  genuine  notes  were 
printed,  and  that  they  were  then  in  the  vaults  of  that  company.  Held. 
that  the  evidence  was  sufficient  to  establish  the  legal  existence  of  the 
bank. 

2.  Civil  practice  act  not  applicable.— The  provisions  of  the  Code  of 

Civil  Procedure,  making  certified  copies  of  the  records  of  foreign  coun- 
tries evidence,  and  prescribing  the  manner  of  authentication,  are  not 
applicable. 

3.  The  indictment  cluu-ged  that  the  note  so  alleged  to  have  lieen  forged  was 

"for  the  payment  of  Mty  centavon."  Held,  that  it  was  not  necessary 
to  define  the  meaning  of  the  word  centavos. 

4.  Under  tlie  statute  defining  forgery  in  the  second  degree,  the  making  and 

engi'aving  of  an  unfinished  plate  constitute  the  offense. 

5.  Want  of  authority  of  defendant  to  make  the  plate.— Testimony 

that  the  genuine  plates  of  the  bank  were  engraved  and  retained  liy  tin- 
Bank  Note  Company,  with  the  testimony  of  the  agent  of  the  bank  in 
this  country  that  no  one,  except  said  company,  had  been  authorized  ti) 
do  any  engi'aving  for  the  bank,  was  sufiicient  to  establish  prima  facie 
that  the  defendant  was  not  authorized  to  make  the  plate. 

6.  Not  necessary  to  allege  intent  to  defraud. — As  the  offen.se  charged 

was  committed  before  the  Penal  Cotle  went  into  effect,  it  was  not  essen- 
tial to  charge  in  the  indictment  an  intent  on  the  part  of  defendant  to 
defraud  some  individual  or  corporation. 

7.  Waiver. — Assuming  that  the  provisions  of  the  Penal  Cotle,  defining 

forgery  in  the  second  degree,  were  applicable,  as  the  Code  of  Criminal 
Procedure  requires  such  question  to  be  raised  by  motion  before  or  at  tlie 
time  defendant  was  called  for  judgment,  by  failing  so  to  present  it  the 
right  to  object  was  waived,  and  defendant  could  not  avail  himself  of  it 
upon  appeal. 

8.  Supreme  court  may  grant  new  trial,  although  no  exceptions 

were  taken  below. —  The  power  conferred  upon  the  supreme  court  by 
the  Code  of  Criminal  Procedure  (§  527,  as  amended  by  chap.  306,  Laws  of 
1882),  on  appeal  in  a  criminal  action,  to  grant  a  new  trial  where  tlio 


THE  PEOPLE  V.  D'ARGENCOUR. 


241 


judgment  is  against  evidence  or  law,  or  where  justice  requires  it, 
althougli  no  exceptions  were  taken  in  the  court  below,  is  discretionary, 
and  where  it  docs 'not  appear  that  the  discretion  has  been  abused,  the 
decision  of  tliat  court  is  not  reviewable. 


Appeal  from  judgment  of  the  general  term  of  the  supremo 
court,  in  the  first  judicial  department,  entered  upon  an  order 
made  March  7, 1884,  which  affirmed  a  judgment  of  the  court 
of  general  sessions  of  the  peace  for  the  city  and  county  of 
'^ew  York,  entered  upon  a  verdict  convicting  defendant  of  the 
crime  of  forgery  in  the  second  degree. ' 

Miller,  J.  The  defendant  was  indicted  and  convicted  for 
the  crime  of  forgery  in  the  second  degree,  on  the  first  count 
contained  in  the  indictment.  Tliis  charged  that  the  defendant 
made  and  engraved,  and  caused  and  procured  to  be  made  and 
engraved,  a  ])late  in  the  form  and  similitude  of  a  promissory 
note,  issued  by  a  bank  at  Havana,  in  the  island  of  Cuba,  for 
the  payment  of  fifty  ccnfavos,  said  bank  being  a  bank  incor- 
porated under  the  laws  of  the  kingdom  of  S])ain,  without  the 
authority  of  said  bank,  and  in  violation  of  the  statutes  of  this 
state. 

Tlie  counsel  for  the  appellant  insists  that  the  court  erred  in 
refusing  to  advise  the  jury  to  acquit,  on  the  ground  that  there 
was  no  legal  evidence  oifcred  by  the  people  that  the  alleged 
l)ank  was  incorporated  under  the  laws  of  the  kingdom  of 
Spain. 

Upon  the  trial  a  witness  was  introduced  and  sworn  on  be- 
half of  the  people,  who  testified  that  he  was  a  banker  in  K'ow 
York  city ;  that  he  had  been  in  the  bank  named  in  the  alleged 
forged  note ;  that  the  bank  issued  notes  which  were  received 
as  money ;  that  his  firm  were  the  agents  of  said  bank  in  the 
city  of  N^cw  York;  that  when  he  was  in  this  bnnk  at  Havana 
he  saw  banking  business  carried  on.  He  further  testified  that 
the  said  bank  was  incorporated  under  the  laws  of  Spain ;  that 
he  saw  the  articles  of  incorporation  in  a  book  Avhich  Avas  in  the 
court  room  on  the  day  of  the  trial ;  that  from  what  he  saw 
there,  and  also  from  what  he  saw  in  the  official  organ,  the  paper 
of  the  Spanish  government,  he  believed  it  to  be  so ;  that  this 
official  paper  was  published  b}'  the  government  and  only  con- 
tains official  news,  the  chief  laws,  and  any  change  in  the  ad- 
Vol.  IV  — 10 


242 


AMERICAN  CRIMNAL  REPORTS. 


ministration  that  interests  the  public.  The  fact  of  the  bank 
being  incorporated  was  also  proved  by  the  engraver  connected 
with  the  American  Bank  Note  Company ;  that  it  had  engraved 
the  plates  from  which  the  genuine  notes  of  the  bank  were 
printed,  and  Avhich  plates  were  then  in  the  vaults  of  said  com- 
pany. 

We  think  that  this  evidence  was  suiRcient  to  show  the  ex- 
istence of  the  bank  without  producing  the  laAV  to  establish  the 
fact  that  the  bank  had  been  incorporated,  and  the  act  of  in- 
corporation, and  that  there  was  no  error  in  the  refusal  of  the 
court  to  advise  the  jury  as  requested.  The  rule  has  long  been 
established  in  this  state  that  it  is  not  necessary,  on  an  indict- 
ment for  forgery  of  bonk-notes,  to  prove  by  direct  evidence 
the  incorporation  of  the  bank,  and  that  testimony  of  the  most 
general  character  is  sufficient  for  such  a  purpose.  In  People  v. 
Davis,  21  Wend,,  309,  it  was  held,  on  an  indictment  for  having 
in  possession,  Avith  intent  to  pass,  bank-notes  purporting  to  liave 
been  issued  by  a  banking  corporation  of  a  state  other  than 
that  of  Xew  York,  that  it  was  not  necessary  to  show  that 
there  was  in  fact  such  a  corporation  in  existence;  at  all  events 
proof  of  the  most  general  character  of  its  existence  Avould  be 
sufficient.  The  same  rule  is  applicable  here,  and  the  proof  in- 
troduced AA^as  clearly  sufficient  to  establish  the  legal  existence 
of  the  bank  Avithin  the  authority  cited.  Anyotlier  or  diiferent 
rule  AA'Ould  cause  great  difficulty  on  a  trial  of  this  dosciiption, 
and  A'ery  greatly  interfere  Avith  the  administration  of  justice  in 
such  cases.  The  general  practice  has  been,  in  cases  of  this 
character,  to  produce  general  evidence  as  to  the  incorporation 
of  the  bank  upon  Avhich  the  alleged  forgery  Avas  committed. 
Such  being  the  rule  in  this  state,  it  Avould  seem  to  be  unneces- 
sary to  examine  Avhether  the  same  or  a  different  rule  exists  clse- 
Avhere.  The  case  of  People  v.  Peahody,  25  Wend.,  472,  cited  by 
the  appellant's  counsel,  is  not  adverse  to  the  rule  laid  down  in 
People  V.  Davis,  supra,  as  that  Avas  a  case  Avhere  an  intent  was 
charged  to  defraud  the  bank,  and  it  is  there  laid  down  that  to 
constitute  the  offense  of  forgery,  in  counterfeiting  the  notes  of 
a  bank,  it  is  not  necessary  that  such  bank,  as  the  notes  purport 
to  have  been  issued  by,  should  haA'e  a  legal  existence;  it  is 
enough  that  the  notes  purport  to  haA'e  been  issued  by  a  cor- 
poration ^r  company  duly  author' zed  to  issue  notes. 


gn 


THE  PEOPLE  V.  D'ARGENCOUB. 


243 


The  provisions  of  the  Code  of  Civil  Procedure  (§§  950-958 
and  942)  have  no  application  to  an  indictment  for  coiinterfeit- 
in^'  bank-notes.  The  rule  in  civil  cases  in  regard  to  proof  of 
tliis  character  is  different,  and  the  proof  of  the  existence  of 
tlic  bank  upon  which  the  forgery  was  committed  was  entirely 
sufficient  in  the  case  at  bar. 

It  is  further  insisted  that  the  court  erred  in  refusing  to  ad- 
vise the  jury  to  acquit  upon  the  ground  that  the  indictment 
docs  not  set  forth  any  instrument  Avhich  purports  to  be  a  pecun- 
iary obligation  of  the  bank.  Tliis  point  relates  to  the  allega- 
tion in  tlie  indictment  tliat  the  note,  alleged  to  have  been  made 
and  engraved,  was  for  tlxe  payment  of  "  fifty  centavos,-^  and  the 
claim  is  that  the  terms  employed  do  not  show,  of  themselves, 
tliat  crntovos  are  money,  or  tliat  tlie  alleged  promise  involved 
any  pecuniary  obligation  to  pay  on  the  part  of  the  bank.  Tlie 
charge  in  the  indictment  which  is  referred  to  is  for  making  and 
engraving,  and  causing  and  procuring  to  be  made  and  engraved, 
a  plate  in  the  form  and  similitude  of  a  promissory  note,  in 
violation  of  the  statute  (3  E.  S.  (7th  ed.),  2488,  30  and  31),  and 
it  was  not  necessary,  to  sustain  the  allegation,  to  define  the 
meaning  of  the  word  referred  to.  It  is  of  no  importance 
\vh;;thcr  an  explanation  was  given  to  the  Avord  ccnfavos  or  not. 
If  that  word  had  not  been  engraved  upon  the  plate,  the  en- 
graving and  making  of  the  plate  unfinished  would  have  been 
in  violation  of  the  statute,  and  the  indictment  was  clearly  good 
without  defining  or  attempting  to  give  a  definition  to  the  word 
reiitavos. 

The  appellant's  counsel  relies  upon  the  case  of  Sanahrla  v. 
People,  24  Ilun,  270,  but  that  case  is  entirely  different  from 
the  one  at  bar.  The  indictment  there  was  for  attempting  to 
forge  an  instrument  purporting  to  be  a  pecuniary  obligation  of 
the  empire  of  Brazil,  which  was  set  forth  in  the  Portuguese 
language  with  an  English  translation,  which  did  not  define 
what  was  meant  by  the  terms  there  used  for  money  in  the 
Portuguese  language,  and  it  was  held  that  as  the  term  used 
was  not  money  of  this  country,  and  as  the  court  could  not  take 
judicial  notice  that  it  was  a  coin  at  all,  it  did  not  appear  that 
the  instrument  involved  any  pecuniary  demand  or  obligation 
upon  the  part  of  the  empire  of  Brazil,  and  that  the  indict- 
ment was  insufficient.    It  will  be  observed  that  the  charge  re- 


214 


AMERICAN  CRDIINAL  REPORTS. 


luted  to  the  forging  of  an  instrument  which  created  a  pecuniary 
obligation,  and  sulficient  did  not  appear  upon  the  face  of  the 
indictment  to,  show  that  any  such  obligation  was  forged,  and 
thus  no  crime  was  alleged.  The  allegation  here  is  entirely 
difTeront,  and  a  crime  would  be  made  out  if  the  engraving  had 
been  but  partially  completed,  and  hence  the  case  cited  is  not 
applicuble. 

Xor  was  any  error  committed  by  the  court  in  refusing  to 
advise  the  jury  to  acquit  upon  the  ground  that  there  was  no 
evidence  showing  the  want  of  authority  on  the  part  of  de- 
fendant to  make  the  plate.  The  evidence  of  such  want  of 
authority,  we  think,  was  sufficiently  established  by  the  agent 
of  the  bank  in  this  country,  who  testified  that  no  one  save  tlie 
IJank  Xote  Company  had  been  authorized  through  him  to  do 
any  engraving  for  the  bank,  and  the  lithographer  whose  com- 
pany had  the  genuine  plates  in  its  possession.  The  proof  was 
positive  that  plates  had  been  manufactured  for  the  bank  by  the 
American  Bank  Note  Company,  who  retained  possession  of 
the  same,  and  the  agent's  testimony,  therefore,  tends  to  show 
that  the  defendant  had  no  autliority  for  any  such  purpose.  In 
view  of  this  testimony',  it  is  not  probable  that  any  other  per- 
son was  authorized  to  engrave  plates  for  the  bank,  and  it  de- 
volved upon  the  defendant  to  establish  to  the  contrary  if  such 
was  the  fact.  The  people  were  not  bound,  in  view  of  tlio  proof 
given,  to  show  a  negative,  and  the  evidence  introduced  by  the 
defendant,  for  the  piu-pose  of  establishing  authority,  was  not, 
of  itself,  sufficient  for  that  purpose.  As  the  case  stood  it  was 
for  the  jury  to  determine  whether  a  want  of  authority  was 
established,  and  it  cannot,  as  a  matter  of  law,  be  held  that 
there  was  a  failure  of  the  prosecution  in  this  respect. 

It  is  further  objected  that  the  indictment  Avas  fatally  defect- 
ive in  not  charging  an  intent  to  defraud  some  individual  or 
corporation.  The  indictment  charged  an  offense  in  violation 
of  the  provisions  of  sections  30  anrl  ol  of  tlie  "Revised  Statutes, 
sujyra.  There  is  nothing  in  these  provisions  which  requires 
that  there  should  be  an  intent  to  defraud  any  individual  or  cor- 
poration. The  offense  was  committed  in  September,  18S2,  be- 
fore the  Penal  Code  went  into  effect,  and  hence  the  charge  made 
in  the  indictment  must  be  in  accordance  with  the  provisions  of 
the  statute  cited,  and,  therefore,  it  was  not  necessary  to  allege 


THE  PEOPLE  V.  D'ARGENCOUR. 


245 


any  such  intent.  But  aside  from  this  view  of  the  question  pre- 
sented, and  assuming  that  the  provisions  of  section  511  of  the 
Penal  Code  are  applicable,  it  is  a  sutKcient  answer  to  the  point 
urged  to  say  that  tlio  cpiestion  was  not  raised  so  as  to  be  avail- 
able to  the  defendant.  Section  4()9  of  the  Code  of  Criininal 
Procedure  required  a  motion  to  be  made  for  that  purpose  before 
or  at  the  time  when  the  defendant  was  called  for  judgment. 
This  was  not  done,  but  a  motion  was  made  in  arrest  of  judg- 
ment and  for  a  new  trial,  tlie  grounds  of  which  were  con  lined 
to  tlie  exceptions  talcen  at  the  trial,  and  to  the  judge's  cliarge, 
and  did  not,  tlierefore,  include  this  alleged  defect.  By  failing 
to  present  the  question  the  defendant  waived  the  riglit  to  ob- 
ject tliat  tlie  indictment  was  defective  for  want  of  an  averment 
of  an  intent  to  defraud.  The  provisions  of  section  527  of  the 
Code  of  Criminal  Procedure  do  not  aid  the  defendant,  as  tlio 
power  conferred  upon  the  supreme  court  to  grant  a  new  trial 
when  tlie  verdict  is  against  the  weight  of  evidence,  or  against 
law,  or  when  justice  requires  a  new  trial,  whether  any  excep- 
tion shall  have  been  taken  or  not  in  the  court  below,  is  a  dis- 
cretionary one,  and  as  it  cannot  be  said  that  the  discretion  has 
been  abused  by  the  general  term  of  the  suprcniio  court,  the 
decision  is  not  reviewable  upon  appeal  to  tliis  court. 

It  is  also  insisted  that  there  was  no  proof  of  an  intent  (in 
the  part  of  the  defendant  to  defraud.  The  question  of  intent 
was  one  for  the  jury.  Although  the  plate  was  not  entirely 
complete,  yet  it  was  sutticiently  so  to  evince  that  it  was 
intended  for  the  printing  of  notes  of  the  description  of  those  is- 
sued by  the  bank  named  thereon.  This  is  shown  by  the  descrip- 
tion given  by  one  of  the  witnesses  upon  the  trial.  It  conforms 
to  similar  parts  of  a  gen  nine  plate.  The  question  of  defendant's 
good  faith  was  for  the  jur}-,  and  in  view  of  the  evidence  it  can- 
not be  said  that  there  Avas  no  ground  for  claiming  that  the 
act  of  the  defendant  was  without  any  intent  to  defraud  or 
commit  a  crime  in  violation  of  the  statute. 

The  judgment  should  be  affirmed. 

All  concur. 

Jxiclgment  affirmed. 


246 


AMERICAN  CRIMINAL  REPORTS. 


United  States  v.  Cakll. 

(103  U.S.,  Oil.) 

Forgery  :  Language  of  statute. 

SciENTEn  MUST  BE  ALLEGED. — An  indictment  on  section  5431  of  the  Re- 
\iaed  Statutes,  alleging,  in  words  of  the  statute,  that  the  defendant  felo- 
niously, and  with  intent  to  defraud,  did  pass,  utter  and  publish  a  falsely 
male,  forged,  counterfeited  and  altered  obligation  of  the  United  States, 
must  further  allege  that  the  defendant  knew  it  to  be  false,  forged,  coun- 
terfeited and  altered,  or  it  is  insufficient,  even  after  verdict. 

Certificate  of  Division  in  Opinion  between  the  Judges  of  the 
Circuit  Court  of  the  United  States  for  the  Southern  District  of 
New  York. 

The  Solicitor-General,  for  the  United  States. 
Mr.  William  C.  Roberta,  for  the  defendant. 

Mr.  Justice  Gkay,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

In  an  indictment  upon  a  statute,  it  is  not  suificiont  to  set 
forth  the  offense  in  the  woi'ds  of  the  statute,  unless  those  words 
of  thcuiaelvcs,  fully,  directly  and  expressly,  without  any  uncer- 
tainty or  ambiguity,  set  forth  all  tlie  elements  necessary  to 
constitute  the  offense  intended  to  be  punished;  and  the  fact 
that  the  statute  in  question,  read  in  the  light  of  the  common 
law,  and  of  other  statutes  on  the  like  matter,  enables  the  court 
to  infer  the  intent  of  the  legislature,  does  not  dispense  with 
the  necessity  of  alleging  in  the  indictment  all  the  facts  neces- 
sary to  bring  the  case  within  that  intent.  United  Stales  v. 
Cruilcshaiilc,  92  U.  S.,  542;  United  States  v.  Slmmonfi,  9(5  id., 
3G0;  Commonioealth 'V.  C//^o/yZ,  8  Cush.  (Mass.),  215;  Common- 
wealth V.  Bean,  11  id.,  414;  Commonwealth  v.  Bean,  14  Gray 
(Mass.),  52 ;  Commonwealth  v.  Filburn,  119  Mass.,  297. 

The  language  of  the  statute  on  which  this  indictment  is 
founded  includes  the  case  of  every  person  who,  with  intent  to 
defraud,  utters  any  forged  obligation  of  the  United  States.  But 
the  offense  at  which  it  is  aimed  is  similar  to  the  common  law 
offense  of  uttering  a  forged  or  counterfeit  bill.  In  this  case, 
as  in  that,  knowledge  that  the  instrument  is  forged  and  coun- 
terfeited is  essential  to  make  out  the  crime ;  and  an  uttering, 
with  intent  to  defraud,  of  an  instrument  in  fact  counterfeit, 


DANIEL  V.  STATE. 


247 


but  sii  Imposed  by  the  defendant  to  be  genuine,  though  Avithin 
the  words  of  the  statute,  would  not  be  within  its  meaning  and 
object. 

Tliis  indictment,  by  omitting  the  allegation  contained  in  the 
indictnicut  in  T/ie  United  States  v.  Howell,  11  "Wall.,  432,  and 
ill  all  ai>i)rovcd  precedents,  that  the  defendant  knew  the  instru- 
ment which  ho  uttered  to  be  false,  forged  and  counterfeit,  fails 
to  chiirgo  him  with  any  crime.  The  omission  is  of  matter  of 
substance  and  no',  a  "defect  or  imperfection  in  matter  of  form 
only,''  within  the  meaning  of  section  1025  of  the  Eevised  Stat- 
utes. By  the  settled  rules  of  criminal  pleading,  and  the  author- 
ities above  cited,  therefore,  the  question  of  the  suilicicncy  of 

tlic  indictment  must  be 

Answered  in  the  negative. 


Daniel  et  al.  v.  State. 

(61  Ala.,  4.) 

Fraudulent  packing  or  cotton:  Indictment—  Technical  terms. 

Not  neckssauy  to  show  concealment  of  substance  mixed  with  the 
COTTON. —  A  penal  statute,  which  provides  that  "any  person  who 
frauilulently  packs  or  Imles  any  cotton  by  plating,  or  otherwise,"  is  vio- 
lated when  jwrsonfl,  who  gin  cotton  for  toll,  with  intent  to  defraud  the 
owner  or  the  purchaser  thereof,  mix  sand  or  other  substances  with  the 
cotton ;  nor  is  it  necessary  to  show  a  concealment  of  the  sand  or  other 
substances  in  order  to  make  out  the  offense. 

Indictment  —  Generic  or  technical  terms — Words  generally  under- 
stood AMONG  THE  PEOPLE. — Where  a  statute  creating  an  offense  de- 
clares that  it  may  be  committed  by  certain  specified  acts  or  means,  "or 
otherwise,"  the  acts  "otherwise"  or  different  from  those  specified  must 
be  alleged  in  such  a  manner  as  to  enable  the  court  to  determine  from 
the  indictment  whether  or  not  they  constitute  an  offense. 

Same. —  In  alleging  the  acts  assumed  to  be  criminal,  they  should  be  set 
forth  in  unambiguous  words,  understood  by  court  and  jury  and  by  the 
people  generally ;  not  in  slang  words  or  vulgarisms,  or  words  used  in  a 
technical  sense  in  some  particular  employment  or  business,  but  in 
words  belonging  to  the  plain  and  proper  language  of  the  community. 

Appeal  from  the  Circuit  Court  of  Barbour. 

J).  If.  Seals,  for  appellants. 

JI.  C.  ToinpJc'ms,  attorney-general,  for  appellee. 


248 


A3IERICAN  CRIMINAL  REPORTS. 


Manning,  J.  The  statute  (sec.  4398  of  the  Code  of  1S7G)  de- 
nouncing a  penalty  against  "any  person  wl")  fraudulently 
juicks  or  bales  any  cotton  by  plating,  or  otherwise,"  is  un- 
doubtedly violated  when  persons  who  gin  cotton  for  toll, 
with  intent  to  defraud  the  owner  of  seed-cotton  sent  to  them 
to  be  ginned  or  packed,  or  to  defraud  a  purchaser  thereof,  mix 
sand  or  other  worthless  foreign  substances  with  the  cotton 
when  ginned,  in  the  bales  into  which  it  is  packed.  It  is  not 
necessary,  in  order  to  nuike  out  the  offense,  to  show  that  the 
sand  is  put  into  the  interior  of  the  bale  and  concealed  by  sur- 
rounding or  plating  it  with  clean  cotton ;  nor  does  it  matter 
whether  the  sand  is  put  into  the  cotton  while  in  the  gin-house, 
or  being  carried  out  to  the  press,  or  at  the  press  when  packed 
or  about  to  be  packed  into  bales.  The  charges  of  the  circuit 
judge  are  not  inconsistent  witli  these  views,  and  were  not 
erroneous;  nor  did  he  err  in  refusing  to  give  to  the  jury  the 
charges  2,  3  and  3J  that  were  asked  on  behalf  of  defendants. 

About  the  indictment,  we  have  had  some  diiliculty.  It 
charges  that  appellants  "did  fraudulently  jnick  or  bale  one 
bale  of  lint  cotton,  the  i)roi)erty  of  Hester  Ann  Jones,  by 
plating  or  otherwise,  to  wit,  by  fttaul-jta/'l'aifj,'^  etc. 

When  a  statute  creatiu":  an  t>trense  declares  that  it  may  be 
committed  by  certain  si)ecilied  acts  or  means,  "  or  otherwise," 
the  acts  otherwise  or  different  from  those  speeiJled,  and  which 
are  to  be  put  in  evidence,  must  be  so  described  or  alleged  in 
the  indictment  that  the  court  shall  be  able  to  see  whether  or 
not  they  constitute  the  offense.  Darmer  v.  The  State,  54  Ala., 
127.  If,  in  the  latter  of  such  alternative  averments,  the  acts  or 
means  by  which  the  offense  is  supposed  to  have  been  committed 
are  not  mentioned, —  it  may  turn  out  that  the  grand  jury,  in 
finding  the  indictment,  and  the  petit  jury,  in  their  venlict  sus- 
taining it,  have  imputed  to  certain  acts  a  character  of  crim- 
inality Avhich  does  not  belong  to  them  in  the  e^'es  of  the  law, 
and  upon  which  the  judge  would  not  bo  justified  in  passing 
sentence  against  the  accused. 

It  follows,  of  course,  that  in  alleging  the  acts  assumed  to  bo 
criminal,  they  should  be  set  forth  in  unambiguous  Avords,  un- 
derstood by  court  and  jury  and  by  people  generally ;  not  in 
slang  Avords  or  vulgarisms,  or  Avords  used  in  a  technical  sense 
in  some  peculiar  employment  or  business,  but  in  Avords  belong- 


mg  or 


DICKEY  V.  THE  STATE. 


249 


ing  to  the  plain  and  proper  language  of  the  community.  "We 
have  hesitated  over  the  question  whether  the  expression  "sand- 
packing  "  is  not  of  a  technical  character,  and  as  such  not  gener- 
ally known  in  popuhir  use.  But  considering  how  generally  the 
peoi)le  of  this  state  are  concerned  in  the  raising  of  cotton,  and 
in  pre[)aring  it  for  nnirket,  and  in  the  sale  and  purchase  of  it, 
we  tliink  the  meaning  of  "  sand-packing"  has  become  so  gen- 
erally understood  that  wo  cannot  say  the  indictment  is  had 
for  ambiguity.  It  would  have  been  better  to  have  alleged  that 
the  fraudulent  packing  of  the  cotton  was  done  by  intermix- 
ing or  putting  sand  with  the  cotton  in  the  bale,  with  the  in- 
tent, etc. 

Solicitors  should  use  more  thought  and  care  in  preparing  the 
brief  indictments  which  are  authorized  by  our  statutes. 

Let  the  judgment  of  the  circuit  court  be  alhrmed. 

Note. —  In  the  grave  and  f oimal  accusation  of  a  grand  jury,  by  which  a 
person  is  put  on  trial  for  lii:i  liberty  or  life,  things  which  arc  the  subject  of 
an  alleged  ollense  should  bo  called  or  set  forth  by  names  or  words  wliich 
properly  designate  or  describe  them.  "  Greenbacks "  is  but  a  niclniame, 
originally,  or  slang  word,  derived  from  the  color  of  the  engi'aving  on  the 
backs  of  the  currency  so  denominated,  and  not  either  the  legal  designation 
or  a  proper  description  of  the  things  alleged  to  have  been  feloniously  taken. 
The  fact  that  the  word  has,  from  its  conveniency,  come  into  common  use, 
does  not  make  it  by  itself,  without  comiection  with  something  else  indicat- 
ing the  notes  called  by  that  name,  a  projier  denomination  for  them  in  an 
indictment.     Wculey  v.  The  State,  Gl  Ala.,  282. 


DicKET  V.  The  State. 

(08  Ala.,  508.) 

GAMiNa:  Ilifjlncay — Public  place — Jurisdiction  over  navigable  stream. 

1.  Gamixo  — Highway  — Naviqable  stream  not.— A  navigable  stream  is 
not  a  hiijlnvaij  within  the  meaning  of  the  statute  against  gaming  (Coile, 
sec.  4207).  > 

'  Suction  4207,  Code  of  Alabama,  provides :  "  Any  person  who  plays  at  any 
game  with  cards,  dice,  or  any  device  or  substitute  for  either  cards  or  dice, 
at  any  tavern,  inn,  store-liouso  for  retailing  sijirituous  liquors,  or  house  or 
place  where  spirituous  liquors  are  retailed,  sold  or  given  away;  or  in  any 
public  house,  highway  or  other  public  place,  or  any  outhouse  where  people 
resort,  must,  on  conviction,  bo  fined,"  etc. 


250 


AMERICAN  CRIMINAL  REPORTS. 


2.  Sajie  —  Public  place.— Playing  a  game  of  cards  in  a  ferry  boat,  which 

carried  passengers  across  a  public  licensed  ferry,  is  a  "  public  place,"  al- 
though the  boat  was  not  that  day  engaged  in  cai'rying  passengers  by 
reaijon  of  an  overflow  in  the  river,  and  a  person  standing  on  the  bank 
of  the  river  could  not  see  the  game  going  on. 

3.  Jurisdiction  over  navigable  stream. —  The  playing  having  been  in 

the  middle  of  the  river  dividing  two  counties,  the  courts  of  either  county 
had  jurisiliction  of  the  offense  under  the  statutes. 


Appeal  from  County  Court  of  Madison. 
Hon.  W^illiam  Richardson. 


Tried  before  the 


II.  C.  Tomjjhlns,  attorney-general,  for  the  state. 

SoMERviLLE,  J.  The  general  charge  given  by  the  court  in 
this  case  asserts  several  distinct  legal  propositions,  some  of 
which  are  certainly  correct.  The  exception  reserved  is  to  tlio 
whole  charge,  and  not  to  any  particular  part  of  it  whicli  is 
specified  as  being  obnoxious  to  objection.  Such  exceptions 
have  frequently  been  coiidemned  by  this  court  as  defective, 
and  they  Avill  not,  therefore,  be  considered,  except  in  cases 
wliere  evxry  pi'oposition  announced  in  the  general  cliar/j;e  is  er- 
roneous. South  and  XodhAla.  11.  It.  Co.  v.  SuIUvan,  5!)  Ala., 
272;  Gr<n/  v.  State,  03  Ala.,  00. 

The  indictment  in  this  case  cliarges  the  defendant  with  Inlay- 
ing at  a  game  with  cards,  in  one  of  the  places  proliibited  by  sec- 
tion -1207  of  the  code;  and  the  form  of  indictment  used  is  llio 
one  prescribed  in  section  -IS24  for  card  jilaying  at  public  places. 
Code  1870,  p.  994,  form  Xo.  27.  The  playing  is  proved  tt)  luivc 
taken  place  in  a  ferry  boat,  which  carried  passengers  across 
a  public  licensed  ferry  over  Paint-Eock  river,  Avhicii  is  a  naviga- 
ble stream,  constituting  the  boundary  line  between  the  coun- 
ties of  IMarshall  and  IMadison.  The  ferry  boat  was  at  the 
time  about  sixty  yards  above  the  ferry,  in  the  middle  of  the 
river,  and  about  half  a  mile  from  either  bank.  The  river  be- 
ing very  high  by  reason  of  an  overflow,  and  it  being  Sunday, 
no  passengers  were  being  transported  on  that  day  over  the 
ferry. 

We  think  that,  under  this  state  of  facts,  the  defendant  was 
properly  convicted.  It  is  true,  as  held  by  the  court  in  6'A<w  y. 
The  State,  30  Ala.,  529,  that  a  navigable  stream  is  not  a  hlgh- 
toay  within  the  meaning  of  the  above  statute,  and  the  court 


DICKEY  V.  THE  STATE. 


251 


below  so  charged  the  jury.  But  it  may  become  a  "public 
place"  by  force  of  circumstances.  In  Coleman  v.  The  State, 
13  Ala.,  002,  it  was  held  that  a  steamboat  carrying-  passengers 
and  freight  on  a  navigable  river  was  a  public  place.  So,  like- 
Avise,  a  neighborhood  road  has  been  held  to  be  a  public  place. 
Mills  V.  The  State,  20  Ala.,  80.  And  it  is  manifest  that  the  rea- 
son upon  which  these  cases  are  based  would  embrace  a  fci'ry- 
boat  plying  across  a  public  licensed  ferry. 

Xor  does  it  matter  that  the  playing  was  at  the  time  unseen 
by  any  observers  other  than  the  participants.  It  is  not  the 
fact  of  being  seen,  but  the  liahility  to  be  seen,  which  is  con- 
templated by  the  statute.  No  matter  Avhat  degree  of  scci'ecy 
may  be  ])reserved,  or  how  few  the  number  of  spectators  present, 
if  the  place  comes  within  the  statutory  prohibition,  any  game 
at  curds  there  is  in  violation  of  law,  and  indictable.  Windham 
V.  State,  2G  Ala.,  09. 

The  playing  having  been  in  the  middle  of  the  river  dividing 
tlie  counties  of  Marshall  and  Madison,  the  courts  of  Madison 
clearly  had  jurisdiction  of  the  offense,  under  the  provisions  of 
the  statute.     Code  1870,  §  4030;  mil  v.  State,  43  Ala.,  335. 

A  proper  regard  for  tliese  well-settled  legal  principles  re- 
quired the  refusal  of  the  charges  requested  to  be  given  by  the 
appellant,  and  the  court  below  ruled  correctly  in  refusing 
them.    Its  judgment  is,  therefore,  alHrmed. 

Note. —  Jurisdiction  over  navigable  streams.—  In  The  State  v,  Mullen,  35 
Iowa,  1"J9,  the  boat,  whose  keo[)er  was  indicted  for  keeping  a  house  of  ill- 
famo,  tamo  up  the  Mississippi  river,  during  high  water,  and  for  several 
months  prior  to  the  linding  of  the  indictment  ?iad  been  resting  on  the  ground 
on  tilt!  east  side  of  an  island,  east  of  the  main  ';hannel  of  the  river  —  the 
county  of  the  state  in  which  the  indictment  was  found  being  west  of  the 
river.  It  was  run  in  for  repairs,  and  was  left  agrouu'l  by  the  receding  of 
the  waters,  though  at  times  it  was  afloat.  At  the  tune  of  trial  it  was 
iiRround,  but  tlune  was  ice  on  both  sides  of  it.  When  the  water  is  high  it 
ovcrllows  the  island.  A  portion  of  tlie  channel  of  the  river,  from  one  hun- 
ihed  and  lifty  to  three  hundred  feet  in  widtli,  flows  on  the  cas^.  or  Illinois 
sitle  of  the  island,  and,  in  a  good  stage  of  water,  boats  passed  on  that  side. 
When  the  water  is  low,  there  is  no  current  on  the  east  side  of  the  island, 
although  there  is  water.  The  trial  court  instructed  the  jury  "that  if  tho 
boat  or  water-craft  mentioned  in  the  indictment,  and  described  by  tho  name 
■gun-boat,'  was  constructed  for  tho  purpose  of  floating  it  from  pcint  to 
j)oint  upon  the  Mississippi  river,  and  for  tho  jiurpose  of  using  it  as  a  place 
of  resort  for  prostitution  and  lewdness,  and  if  said  boat  has  been  kept  and 
used  for  that  purpose  upon  said  Slisaissippi  river,  between  the  Iowa  Mid 


252 


AMERICAN  CRIMINAL  REPORTS. 


Ulinois  shores,  and  north  of  the  southern  boundary  line  of  the  state,  and 
south  of  the  north  Hne  of  ]\Iontrose  townsliip  (being  the  boundary  line  of 
that  part  of  the  county  within  wliich  jurors  were  to  be  drawn)  in  this  county, 
at  any  time  within  three  years  preceding  the  finding  and  presentation  of  the 
indictment,  then  the  court  cliargos  you  tliat  the  owners  thereof,  and  those 
aiding  and  abetting  in  tlie  commission  of  the  offense,  are  amenable  to  the 
laws  of  this  state,  and  the  fact  that  such  boat  or  water-craft  is  at  tlie  present 
time  on  the  east  side  of  the  main  cliamiel  of  the  Mississippi  river,  resting 
temporarily  in  the  rear  of  the  island,  in  the  river,  because  the  water  has  re- 
ceded from  it,  or  for  purposes  of  rei)tiir,  will  not  take  it  out  of  the  jurisdic- 
tion of  tlie  court  over  it  and  over  its  owners  and  inmates,"  which  instruc- 
tion was  held  to  be  correct.  See,  also,  Mahler  v.  Transjiovtution  Co.,  35  N. 
Y.,  352. 


Allen  v.  The  State. 


(61  Miss.,  027.) 
Grant)  juror:  Intoxication  of — Counsel  —  Right  of,  to  consult  u'itncss. 

1.  Intoxication  of  grand  juror.— An  indictment  will  not  be  alnited  or 

quashed  because  one  or  more  of  the  grand  jury  were  intoxicated  wliilo 
it  was  under  consideration. 

2.  Same  —  Control  of  court  over. — A  grand  jury  Is  not  under  the  con- 

trol of  tlie  court,  lilio  a  petit  jury  is,  wliile  considering  of  their  verdict, 
and  should  not  be  so  judged. 

3.  Witnesses  —  Under  the  rule  — Ekhit  of  counsel  to  consult.— It  is 

error  in  a  criminal  casc^  for  tlio  tlie  court  to  refuse  to  allow  counsel  for 
the  accused  to  consult  his  witnesses,  for  no  other  reason  than  that  tliey 
have  been  jjut  under  tlie  rule. 

Chalmers,  J.,  delivered  the  opinion  of  the  court. 

It  lias  never  been  held,  here  or  elsewhere,  so  far  as  we  cim 
find,  that  an  indictment  could  be  abated  oi*  quashed  because 
one  or  more  of  the  jury  were  intoxicated  whiki  it  was  under 
consideration  by  that  body.  The  graiul  jury  is  not  under  the 
o'uidance  and  control  of  the  court,  like  a  j)etit  jury  is,  wliilo 
considering-  of  their  verdict,  and  should  not  be  so  judged.  Tin; 
plea  in  abatement  was  properly  demurred  to. 

The  court  refused  to  let  counsel  for  the  accused  consult  witli 
his  own  witnesses  upon  the  ground  that  they  were  under  the; 
rule,  and  for  no  other  reason. 

That  this  was  error  is  settled  hv  WhJfes  C<ti^c,  .^)2  IVfiss.,  21*1 

licvei'sed  and  rcmaiuhd. 


EX  PARTE  CARLL. 


253 


Ex  Pakte  Carll. 

(lOG  U.  S.,  521.) 

Habeas  corpus  :  Certiorari. 

Tlic  reviewing  power  of  the  supreme  court  of  the  United  States  in  a  crim- 
inal case,  on  a  writ  of  habeas  corpus,  is  restricted  to  the  consideration 
and  determinatiou  ut  the  question  Avliether  the  court  whicli  passed  sen- 
tence upon  the  prisoner  liad  jurisdiction  to  try  him  for  tlie  offense  for 
which  he  was  indicted  and  to  pass  sentence  of  imprisonment  upon  Inm. 
Tliere  is  no  general  power  vested  in  tlie  .^-upreme  court  to  review  tho 
judgment;  <"''  t!ie  inferior  courts  of  the  United  States  in  criminal  cases, 
whetlier  by  t  iie  vise  of  tlic  writ  of  habeas  corjjws  or  otlierwise. 

Petition  for  a  writ  of  Juibeas  corjytis  and  a  certiorari. 

Mr.  Cliief  Justice  Waite  delivered  the  opinion  of  the  court. 

We  liave  had  occasion  to  saj*^  at  the  present  term,  in  Ex-  i^arte 
C»?'«;«5,  that  "  we  have  no  general  power  to  review  the  judg- 
ments of  the  inferior  courts  of  the  United  States  in  criminal 
cases,  b}'  the  use  of  the  writ  of  Juiheas  corjnis  or  otherwise. 
Our  jurisdiction  is  limited  to  the  single  question  of  the  power 
of  the  court  to  commit  the  prisoner  for  the  act  of  Avliich  he  has 
been  couvicted."  This  ndc  is  well  settled.  Ex  parte  Laufje, 
18  AVall.,  It;;!;  Ex  parte  Hoiclancl,  104  U.  S.,  C(M. 

Tlie  grounds  of  the  present  application,  as  stated  in  the  pe- 
tition, are  that  tlie  circuit  court  had  no  juivisdiction  to  try  tho 
prisoner  for  the  olfense  of  which  he  has  been  convicted  and  to 
cominit  him  to  prison  therefor,  because  — 

1.  The  instruments  described  in  the  indictment,  and  charged 
to  liave  been  forged,  show  on  their  face  tliat  tliey  are  wot 
bonils  or  ol)ligations  of  the  United  States,  and,  even  if  genuine, 
possessed  no  validity;  and 

2.  It  was  conceded  on  the  trial  that  the  instruments  set  forth 
in  the  indictment  were  genuine  registered  bonds,  and  that  the 
forgery  complained  of  consisted  in  erasing  the  name  of  tho 
original  payee  and  substituting  that  of  tiie  prisoner. 

All  tho  bonds  described  in  the  indictment,  except  that  in  tho 
third  count,  purport  to  be  issued  under  tlio  act  of  July  14, 1870, 
ch.  2.j(),  as  amended  by  the  act  of  January  20,  1871,  ch.  23. 
This  act  provides  foi'  an  issue  of  bonds  by  the  secretary  of  the 
treasury  "in  such  form  as  he  ma3^  proici'ibe."  Tho  bonds 
now  in  (piestion  appear  to  be  signed  by  the  register  of  tho 


254 


AMERICAN  CRIMINAL  REPORTS. 


treasury  and  not  by  the  secretary.  They  also  have  the  "  im- 
print and  impression  of  the  seal  of  the  department  of  the  treas- 
ury of  the  United  States." 

In  the  indictment  it  is  averred  that  the  connterfoits  were  of 
bonds  of  the  United  States.  This  is  enough  for  the  ])uri)osos 
of  the  jurisdiction  of  the  circuit  court.  Whether  tlie  bonds 
counterfeited  are  in  the  form  of  those  actually  issued  by  the 
secretary  of  the  treasury  under  the  authority  of  the  act  re- 
ferred to,  is  a  question  of  fact  to  be  established  on  the  ti-ial. 
Errors  committed  on  the  trial  of  this  issue  do  not  deprive  tlie 
court  of  its  power  to  imprison  upon  conviction,  and,  as  has 
been  seen,  such  errors  are  not  subject  to  correction  here,  cither 
in  the  present  form  of  proceeding  or  any  otlier. 

What  has  just  been  said  applies  equally  to  the  instrument 
described  in  the  third  count,  which  purports  to  be  signed  by 
the  acting  register  of  the  treasury.  By  the  act  of  Foln-uaiy 
20,  18G3,  ch.  45,  the  president  was  authorized  to  designate  some 
officer  in  a  department  to  perform  the  duties  of  another  in  case 
of  death,  resignation,  absence  or  sickness. 

The  second  ground  of  application  presents  no  jurir.dictional 
question.  The  indictment  charged  the  in'isoner  with  a  crime 
against  the  laws  of  the  United  States.  United  Stafi's  v.  Jlnri- 
gold,  9  How.,  5G0.  We  have  nothing  to  do  with  questions  aris- 
ing on  the  evidence  presented  to  sustain  the  charge. 

Petition  cloiicd. 


Gaevey's  Case. 
(7  Col.,  384.) 

Habeas  corpus:  Indictment  —  Grades  of  crime  —  Jcojmrdi/  —  Verdict  — 

Judgment  —  lictrial, 

1.  The  ■wniT  of  habeas  corpus.— ffafjcas  cor/)?/s  lies  wlicretho  petitioner 

is  coHlined  under  the  judgment  of  a  court  entered  when  Buch  court  had 
no  jurisdiction. 

2.  GiivDES  OP  CRIME, — Thorc  ire  certain  crimes,  including  murder,  wliieh 

arc  arranged  in  gr.ades  one  above  another,  luid  each  higher  oirciiso.  or 
grade  of  an  offense,  contains  all  that  is  embraced  in  the  one  next  lower, 
and  Bometlung  more.  It  is  unnecessary  that  an  indictment  sliould 
specify  the  name  of  the  offense  for  which  it  ia  found,  providing  it  is  in 


GARVEY'S  CASE. 


255 


all  other  respects  sufficient.  Whatever  the  offense  alleged  in  the  in- 
dictment, there  may  be  a  conviction  of  any  other  if  witliin  the  words 
of  the  allegation.  An  indictment  for  murder  charges  likewise  all  the 
lower  gi-ades  of  felonious  homicide,  and  a  conviction  for  manslaughter 
may  be  had  upon  it. 

3.  ISDicTJiEST  — Less  offense  included  in  qreateu.— An  indictment  for 

murder  was  found  by  the  grand  jury.  Afterward  an  act  of  the  legis- 
lature was  passed,  without  a  saving  clause,  which  rendered  it  illegal  to 
convict  the  accused  of  the  crime  of  murder,  but  did  not  affect  the  law 
as  to  the  punishment  foi  manslaughter.  Held,  that,  under  that  indict- 
ment, the  prisoner  might  be  tried  for  the  latter  offense. 

4.  Sahe  —  Jeopardy. —  The  fact  that  the  accused  had  been  tried  under  such 

iiulictment,  convicted  of  murder,  and  judgment  pronounced  upon  the 
verdict,  which  judgment  was  reversed  because  of  error  in  entering  the 
same  (the  law  having  been  so  modified  as  to  forbid  the  judgment),  will 
not  warrant  his  discharge  on  the  ground  of  former  jeopardy  when  sub- 
scfiiiently  tried  for  mansljiughter  on  the  same  indictment. 

5.  Sajif.  — Verdict  — .Iudoment  — Retrial.— A  verdict  is  the  b.asis  of  the 

judgment,  and  whcsn  the  latter  is  reversed  because  the  law  does  not 
authorize  the  former,  both  are  set  aside  and  are  of  no  effect ;  judgment 
for  murder  being  revei-sed  and  the  cause  remanded  for  further  proceed- 
ings, the  court  cannot,  upon  such  verdict  for  murder,  enter  judgment 
for  manslaughter  without  a  retrial  of  the  cause.  One  so  convicted  may 
be  released  from  the  penitentiary  on  habeas  corpus,  and  remanded  to 
the  custody  of  the  sheriff  to  await  trial. 

Application  for  release  from  penitentiary  on  lialcas  corjms. 


Messrs.  Wells,  Smith  <J&  Macon,  for  petitioner. 
D.  F.  IfYmy,  attorney-general,  for  the  people. 

Beck,  C.  J.  The  petitioner  was  indicted  for  the  murder  of 
one  George  Wolf,  alleged  to  have  been  perpetrated  on  the  23d 
(lay  of  May,  1 880.  The  indictment  Avas  found  by  the  grand 
jury  on  the  l.">th  day  of  March,  1881,  on  which  he  was  tried  at 
tlic  s])ecial  November  term  of  the  district  court  of  Arapahoe 
county,  1 88 1,  found  "guilty  of  murder  as  charged  in  the  indict- 
ment," and  sentenced  to  imprisonment  for  life  in  tlio  state 
penitentiary. 

A  writ  of  error  to  the  judgment  was  prosecuted  to  this 
court,  and  at  the  April  term,  1883,  wo  reversed  tlio  judgment 
nnd  reiuiUHled  the;  cause,  for  the  reason  thu*^,  after  tlie  commis- 
sion of  the  oU'ensc,  the  legislature  had  so  anwrnled  the  statute 
concrniiug  murder  as  to  alter  the  situation  of  the  prisoner  to 
his  disadvantage,  without  a  saving  clause  as  to  the  repealed 


256 


AMERICAN  CRIMINAL  REPORTS. 


provisions,  tliui  making  the  law  ex  post  facto  as  to  the  case  of 
the  petitioner. 

The  petition  is  demurred  to  by  the  attorney-general  on  be- 
half of  tlie  people,  and  it  is  stipulated  by  counsel  reprcsentino- 
the  respective  parties,  that  the  cause  be  heard  upon  this  demur- 
rer, and  that  the  record  upon  the  writ  of  error  of  Garvey  (tlie 
petitioner)  v.  The  People,  recently  heard  and  determined  in 
this  court,  together  with  the  judgment  of  the  district  coi  rt  of 
Arnpahoo  county,  subse(piently  rendered,  denying  the  motion 
to  quash  the  indictment,  and  entering  judgment  upon  the  former 
conviction,  be  considered  as  a  part  of  the  present  petition  for 
writ  of  liaheas  corpus. 

Upon  the  return  of  the  record  in  the  district  court,  the  peti- 
tioner moved  to  quasli  the  indictment,  upon  tlie  ground  tliat  it 
was  insullicient  in  law,  as  ajipcarcd  from  the  judgment  of  re- 
versal. The  petition  alleges  tlitit  the  court  denied  the  motion 
to  quash,  and  gave  judgment  on  tlie  same  verdict,  Avitliout  any 
furtlier  trial  of  the  prisoner,  that  lie  be  confined  in  the  state 
penitentiar}'  for  the  term  of  eight  3'ears.  TTj)on  tliis  judgment 
t)ie  prisoner  Avas  committed  to  the  penitentiary,  wliei-c  lie  still 
remains  in  confinement,  and  to  be  released  from  which  he  has 
sued  out,  from  this  com*t,  the  present  writ  of  haheas  corpus. 

The  judgment  complained  of  is  a  judgment  for  man- 
slaughter. 

The  grounds  of  the  present  npplication  a]ipear  to  be: 

First.  That  the  condition  of  the  law  ai)p1icable  to  the  case 
of  the  prisoner,  at  and  since  the  time  of  his  trJMl  for  nvirdcr, 
has  been  such  that  he  could  not  lawfully  be  tried  for  any  of- 
fense charged  in  the  indictment  in  question. 

Second.  That  the  action  of  the  district  court  in  pronouncing 
judgment  for  manslaughter  without  a  ti'ial  by  jury  was  with- 
out jurisdiction,  and  therefore  null  and  void. 

Upon  the  first  proposition,  it  is  contended  that  the  rejieal  of 
the  provisions  of  the  law  of  homicide,  above  alluded  to,  <  jiutshed 
the  indictment,  or  left  it  in  the  same  condition  it  would  have 
been  if  no  law  authorizing  an  indictuumt  for  murder  had  ever  ex- 
isted. That,  if  this  be  true,  there  could  be  no  record  in  the  district 
court  upon  which  punishment  for  any  ofl'ensc  charged  in  the 
quashed  indictment  could  bo  inflicted.  The  repeal  of  the  stat- 
utory' provisio.MS  had  the  same  eiTect  upon  the  indictment  as  if 


I 


GARVEY'S  CASE. 


257 


a  domurrer  tliei'eto  had  been  sustained  on  the  ground  that  it 
clmrged  no  crime.  There  could  not  be  a  conviction  of  man- 
slaughter, because  it  was  quashed  in  toto  and  not  in  part  only. 
A  (lemuri'or,  it  is  argued,  would  not  have  been  sustained  as  to 
the  cliarge  of  murder,  and  overruled  as  to  the  charge  of  man- 
slaughter involved  in  the  allegations  constituting  murder,  but 
the  in<lictment  would  have  been  quashed  and  the  prisoner  dis- 
cliarged. 

Much  prominence  is  given  the  proposition  that  an  indictment 
or  any  pleading,  under  a  statute  Avhicli  is  repealed  after  the 
tiling  thereof,  is,  for  all  purposes,  al)solutely  null  and  void. 

The  act  amending  the  Criminal  (^ode  was  approved  IVFarch 
1.  1S8I ;  and  while  it  did  not  go  into  effect  until  after  the  filing 
of  the  indictment,  on  the  15th  day  of  March,  1881,  still  the 
aniciubnent  of  the  statute  did  not  wholly  repeal  or  annul  the 
iiulictment.  The  law  of  homicide  was  not  repealed.  Two 
sections  concerning  the  ])unishment  of  murder  were  repealed; 
hut  no  change  Avas  made  in  the  jirovisions  rehiting  to  man- 
slaughter. This  is  but  a  lower  grade  of  the  same  offense,  or  a 
constituent  part  of  it,  and  necessarily  committed  in  the  ])erpe- 
trntion  of  a  murder.  It  is  held,  in  this  class  of  cases,  tliat  a 
count,  ])rf»p(M^]y  framed,  foi*  the  higher  grade  or  offense  con- 
tains all  the  essential  elements  of  a  count  for  the  minor  offense. 

In  illustration  of  this  princi])le,  it  was  said  in  ('ommonwealth 
)'.  /[(triici/,  10  Met.,  425,  that  an  indictment  for  murder  or 
manslaugliter  contains  a  full  and  technical  charge  of  an  assault 
and  battery. 

l)Ut  it  is  fiu'ther  contcndiMl  tlint  the  effect  of  the  legislation 
referred  to  was  to  nhollsh  the  offense  of  murder,  so  far  as  the 
|i('titionor  is  concerned;  and  this  being  done,  he  could  not  be 
convicted  of  manslaug]it(M\  u]>on  this  indiorment;  for,  while 
manslaughter  is  includfd  in  every  indictment  for  murder,  there 
was  here  no  indictment  for  murder;  ;md  it  cannot  be^iid  that 
one  crime  contains  another  vhon  there  is  no  cimtainin.:  crime, 
or  that  an  indictnumt  for  murder  includes  manslaughter,  when 
there  is  no  such  offense  as  muidcr. 

It  would  seem  to  be  an  extravagant  proposition  that,  as  to 

the  petitioner,  there  is  no  such  offense  as  murder.     As  stated 

in  Ga)'i'{'if  r.  77ir  /*<oj>/f\  si//>r(i,  there  remained  unreivalcil  of 

the  law  of  homicide,  in  a<ldition  to  the  provisions  relating  to 

Vol.  IV— 17 


25S 


AMERICAN  CRIMINAL  REPORTS. 


inanslaiightci'  and  its  punishment,  the  sections  defininjr  tho 
crime  of  murder,  providing  tho  form  of  indictment,  and  iiiijios- 
ing  tlie  death  penalty  upon  such  as  should  bo  convicted.  Tiuo, 
the  cliange  made  was  such  that  the  petitioner  could  not  be  law- 
fully convicted  of  murder,  but  there  existed  no  space  of  time 
wherein  the  crime  of  murder  was  not  an  indictable  statutory 
oU'ense.  The  statutory  definition  of  the  crime  of  murder  was 
substantially  the  common  law  definition  as  given  by  Elackstone 
and  (Joke,  4  JJl,  Com.,  105,  The  same  was  true  of  the  form  of 
the  indictment  under  tho  statute.  It  was  substantially  the 
common  law  form. 

The  statutory  definition  of  manslaughter  was  tho  same  as 
defined  at  common  law.  4  VA.  Com.,  "IDl.  The  law  of  man- 
slaughter was  amended  in  188.'?,  but  there  Avas  a  saving  clause 
as  to  all  cases  pending,  so  that  tho  amendment  does  not  alfcct 
the  petitioner.  jS'ow,  counsel  for  j)etitioner  say :  "It  is  ad- 
mitted that  in  every  valid  indictment  for  murder,  voluntary 
manslaughter  is  also  contained;  but  not  in  an  indictment  that 
has  been  quaslicd,  repealed  or  rendered  void  as  to  the  murder 
therein  charged." 

But  the  indictnu^nt,  as  a  pleading,  has  never  been  quashed, 
repealed,  or  rend(!red  void,  either  by  legislative  action,  or  by 
the  order  of  any  court.  The  fact  that  circumstances  have 
transpired  since  tho  offense  was  commiit(!(l,  which  render  the 
charge  of  murder  therein  contained  inapplicable  to  the  case  of 
the  petitioner,  does  not  necessarily  discharge  him  of  man- 
slaughter, wliich  is  a  lower  grade  of  the  sanu?  ofTense.  J  lis 
liability  to  answer  for  the  latter  does  not  depend  iilone  on  the 
princi])lo  tluit  it  is  an  included  offense,  but  that  it  is  cluirgcd 
in  the  indictment  as  well. 

We  apprehend  that  tho  true  tests,  in  such  a  case,  by  Aviiich 
to  determine  tho  validity  of  the  indictment  are:  Is  tho  offense 
for  which  the  convicti(m  is  Sf>ught  included  in  the  crime 
chargisd  in  the  indictnu^nt;  and,  if  so,  is  it  sulliciently  alleged < 

Our  constitution  provides  that  in  criniinal  prosecutions  the 
accused  shall  have  the  right  to  demand  L  o  nature  and  cause  of 
the  accusation  against  him,  which  is  nothing  nu)ro  than  was 
recpiired  by  tho  rules  of  the  common  law.  AVo  have  S(!cn  that 
the  Stat utoiy  definitions  of  murder  and  manslaughter,  as  the 
same  renuiined  uni-epealed  after  tho  legislation  of  1881,  weri: 


synonyii 

fenses;  i 

accordin 

other  UK 

test  the  1 

At  cc 

api^ear  t 

grades  c 

hunuin  b 

were  tht 

sec.  4(i8. 

In  liis 

Bishop  s; 

called  t\\ 

ideas," 

Certair 
one  abov 
offense,  m 
next  Iow( 
the  indict 
offense,  ]> 
class  of  ci 
then;  nii<^ 
of  the  all 
:Mr.  Hi,- 
offense  w 
elude  the 
"We  hav 
(listinctio 
slaughter 
which  arc 
murder, 
homicide 
must  con 
hij;her  fr 
1  I5ish. 
sec.  TilS. 
]\rr,  \M 
with  fchji 
fact  of  m 


( 


GARVEY'S  CASE. 


259 


synonymous  with  the  common  law  definitions  of  the  same  of- 
fenses; and  since  tlie  statute  requires  all  trials  to  be  conducted 
iiccording  to  the  course  of  the  common  law,  except  where  an- 
other mode  is  pointed  out  in  the  C'l-iminal  Code,  Ave  may  safely 
test  the  suiiiciency^  of  this  indictment  by  its  principles. 

At  cc  union  law,  the  words  "murder"  and  "manslaughter" 
appear  to  have  been  terms  emplo^'ed  to  designate  different 
o-rades  of  the  same  oflfense,  viz. :  The  felonious  killing  of  a 
human  being.  All  that  distinguished  one  grade  from  the  other 
were  the  words  "malice  aforethought."  Bishop,  Stat.  Cr., 
sec.  4r.8. 

In  his  work  on  Criminal  Procedure,  vol.  2,  sec.  570,  Mr. 
Bishop  says:  "Whether  mui'der  and  manslaughter  are  to  be 
called  two  crimes,  or  one,  is  matter  only  of  words,  not  of 
ideas." 

Certain  crimes,  including  murder,  were  arranged  in  grades, 
one  above  another,  and  each  higher  olfense,  or  grade  of  an 
otTcnse,  was  said  to  contain  all  that  was  embraced  in  the  one 
next  lower,  and  something  more.  It  was  not  necessary  that 
the  indictment  for  any  olVcMise  siiouhl  sjiecify  the  name  of  the 
offense,  provided  it  was  in  other  respects  sullicient;  and  in  this 
dass  of  crimes,  whatever  the  olfeiise  alleged  in  the  indictment, 
then^  might  be  a  conviction  of  any  other,  if  within  the  words 
of  the  allegation. 

Mr.  l>ish()|)  says  the  indictment  for  the  higher  form  of  the 
offense  would  iilmost  necessarily  be  in  such  liinguage  as  to  in- 
clude the  1()W(U';  and,  relV^rring  to  the  subject  of  murder,  says: 
"We  have  alreadv  considered  what,  in  general  terms,  is  the 
distinction  between  the  indictment  for  murder  and  for  num- 
slaiightcr ;  the  former  merely  recpiii'ing  some  allegations  added, 
which  are  not  in  the  latter.  In  otlru'  words,  the  indictnu'ut  for 
lunrdei',  being  founded  (m  the  statu\  3  which  divided  f(^lonious 
homicide  into  the  two  degrees  of  n.urder  and  numslaughter, 
must  contain  those  statutory  terms  which  distinguished  the 
hijjher  from  the  lower."  2  IJish.  (Jrim.  Troe.,  sees.  5T<i,  540; 
1  P.ish.  Crim.  Troc,  sees.  4l(!,  417,418;  1  Eish.  Crim.  Law, 
sec.  7!)S. 

Mr.  Wharton  illustrates  it  as  follows :  "  Thus,  if  A  be  charged 
with  feloniously  killing  J',  of  nuilice  prepense,  and  all  but  the 
fact  of  malice  prepense  be  proved,  A  may  clearly  be  convicted 


^ 


260 


AMERICAN  CRIMINAL  REPORTS. 


of  uuinsljui^hter,  for  the  indictineiit  contains  all  the  allega- 
tions essontinl  to  tliut  cliarf,fc;  A  is  fully  apprised  of  the  naturo 
of  it;  the  verdict  enables  the  court  to  pronounce  the  proper 
judgment,  and  A  nuiy  i)lejid  his  acquittal  or  conviction  in  liar 
of  any  subsequent  indictment  founded  on  the  same  facts." 
1  Wharton,  Crim.  Law,  sec.  027. 

In  McPhermn  v.  The  State,  29  Ark.,  225,  233,  the  court  say: 
"  An  indictment  for  murder  charges,  also,  all  the  lower  grades 
of  felonious  homicide,  and  a  conviction  for  manslaughter  may 
be  had  u])ou  it." 

I^o  objection  has  been  raised  as  to  the  form  of  the  indict- 
ment in  the  present  case,  so  far  as  the  charge  of  murder  is  con- 
cerned, and  we  feel  warranted  in  saying  that  if  any  indictment, 
in  the  common  law  form,  contains  all  the  allegations  essential 
to  the  charge  of  manslaughter,  then  the  indictment  in  this  case 
is  sutlicient  to  sustain  a  conviction  of  that  olfcnse.  If  tlie 
proposition  of  petitionei-'s  counsel  Avas  to  be  conceded,  that  the 
amendment  of  the  statute  abolished  the  crime  of  murder  so 
far  as  the  prisoner  is  concerned,  the  force  of  the  proposition  is 
expended  when  it  is  declared  that  he  cannot  be  lawfully  con- 
victed of  that  grade  of  crime.  But  mu'der,  as  a  criminal 
offense,  was  not  abolished,  and  being  primarily  charged  in  tlie 
indictment,  and  the  indictment  being  suificient  in  form,  it  fol- 
lows, under  the  authorities  cited,  that  the  offense  of  man- 
slaughter is  substantially  charged  therein. 

In  so  far  as  the  terms  descriptive  of  the  offense,  in  the  present 
case,  exceed  tlie  description  of  manslaughter,  they  do  not 
vitiate  the  indictment,  but  may  be  treated  as  surplusage.  1 
Bish.  Crim.  Proc,  sees.  478,  470. 

It  was  held  in  Eecdv.  The  State,  8  Ind.,  200,  that  in  an  indict- 
ment for  a  liomicide,  charging  munlor,  but  defective  as  to  that 
gra<le  of  crime,  the  word  "murder''  might  be  rejected  as  sui*- 
plusage,  and  the  prisoner  put  upon  his  trial  for  manslaughter. 
The  same  rule  was  announced  in  JXins  v.  The  State,  7  Biaclcl',, 
20,  respecting  the  words  "  with  malice  aforethought." 

The  indictment  in  the  case  at  bar,  though  not  defective  in 
form  as  to  the  higher  offense  or  grade  of  the  offense  chai'ged, 
charges  an  existing  statutory  grade  of  homicide,  of  which  the 
petitioner  cannot  be  convicted. 

But  there  is  no  force  in  the  suggestion  that,  if  put  upon  ti-ial 


qnji 


GARVEY'S  CASE. 


261 


for  manslaughter,  and  the  evidence  should  disclose  that  the 
killing  was  perpetrated  with  malice  aforethought,  there  could 
be  no  conviction  of  the  minor  olfense.  This  point  was  expressly 
adjudged  in  Coiniiionwealth  v.  IFcPtke,  3  Cush.,  181,  Avherein 
it  was  held  that  it  is  no  defense  to  an  indictment  for  man- 
slaughter that  the  homicide  therein  alleged  appears  by  the 
evidence  to  have  been  committed  with  malice  aforethought, 
and  was,  therefore,  murder.  Also,  in  Baimett  v.  T/ie  P(opU\ 
54  111.,  325,  in  reference  to  the  subsequent  trial  of  the  prisoner, 
who  had  been  convicted  of  manslaughter  upon  an  indictment 
for  murder,  the  court  say :  "  lie  could  not  be  convicted  on  this 
trial  for  mm-der,  but,  a  new  trial  having  been  granted  (  \  the 
conviction  for  manslaughter,  he  might  be,  and  was,  properly 
tried  again  for  the  latter-named  crime.  And,  although  tlie 
l)ioof  might  show  that  the  crime  was  perpetrated  deliberately 
and  with  malice,  still,  after  such  acquittal,  the  conviction  could 
only  be  for  the  lower  grade  of  crhne." 

The  foregoing  conclusions  and  authorities  sntficiently  answer 
the  propositions  urged  in  behalf  of  the  petitioner,  that,  had  a 
domiuTcr  been  filed  to  this  indictment,  it  must  have  been 
quashed  hi  toto;  that  an  original  trial  for  manslaughter  could 
not  be  had  thereon,  and  that  if  the  prisoner  had  been  put  to 
his  trial  for  the  minor  ollense,  and  the  evidence  disclosed  a  case 
of  murder,  he  must  have  been  discharged. 

The  proposition  that  the  prisoner  has  been  once  in  jeo])ardy, 
and,  for  that  reason,  could  not  have  been  put  upon  his  trial  for 
manslaughter,  is  equally  fallacious.  Counsel  say,  if  the  in- 
dictment Avould  support  a  conviction  for  numslaughter  at  all, 
it  would  have  done  so  in  the  first  instance,  and,  not  being  con- 
victed of  this  crime  on  the  first  trial,  he  cannot  be  ])ut  in 
jeo})ardy  of  it  again.  If  the  prisoner  had  been  wholly  accpiitted 
there  would  be  force  in  this  assertion;  but  the  fallacy  of  the 
reasoning  is  exposed  by  the  authority  cited  in  its  support,  viz. : 
1  AVharton's  Criminal  Law,  sec.  551. 

]\[r.  Wharton  says :  "  The  rule  is  that  if  the  prisoner  could 
have  been  legally  convicted  on  the  first  indictment,  upon  any 
evidence  that  might  have  been  legally  a(hluced,  his  acquittal  on 
that  indictment  may  be  successfully  pleaded  to  a  second  indict- 
ment; and  it  is  immaterial  whether  the  proper  evidence  were 
adduced  at  the  trial  of  the  first  indictment  or  not." 


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262 


AMERICAN  CRIMINAL  REPORTS. 


The  whole  section  proceeds  upon  the  supposition  that  the 
prisoner  has  been  acquitted  on  the  first  indictment.  The  fact 
here  is  otherwise.  The  prisoner  was  convicted,  and  the  judg- 
ment was  reversed  because  the  conviction  v/as  illegal. 

The  only  other  instance,  mentioned  in  this  section,  as  consti- 
tuting a  bar  to  further  proceedings,  is  where  there  has  been  a 
conviction  on  a  defective  indictment,  followed  by  judgment 
and  a  performance  of  the  sentence.  This,  likewisOj  is  inap- 
plicable to  the  case  of  the  petitioner. 

The  cases  of  Shejycwd  v.  The  People,  25  K  Y.,  40G,  and  the 
IlaHumj  Case,  are  nuiinly  relied  upon  in  support  of  the  position 
assumed,  that  the  petitioner  cannot  be  subjected  to  another  trial, 
but  must  bo  unconditionally  discharged  upon  this  writ.  We 
agree  with  the  attorney-general  and  assistant  counsel  foi*  tlio 
state,  that  the  Ilartung  Case  may  be  clearly  distinguished  from 
the  case  at  bar. 

Every  step  in  the  Ifartung  Case,  from  its  inception,  is  sliowu 
to  have  been  regular  and  legal.  There  was  no  error  in  tiio  in- 
dictment, verdict  or  judgment.  Tlie  conviction  and  judguiont 
were,  in  all  respects,  valid  when  had  and  pronounced.  Tlio 
judgment  was  reversed  l)ecause  the  legislature  liad  subsequently 
enacted  a  statute  Avhich  forbade  the  execution  of  the  death 
sentence  that  had  been  pronounced.  The  reversal  of  the  jiidg- 
raent,  therefore,  was  not  not  based  upon  eri'or  in  any  of  tlio 
proceedings  in  court,  but  upon  matter  wholly  dehors  the  recoiij. 
When  it  is  considered  that  the  prisoner  might  have  been  exe- 
cuted before  the  repeal  of  tlio  law,  the  cause  of  the  reversal. 
and  which  may  be  termed  an  acci<Iental  circumstance,  it  is  hwt 
rational  to  say  that  ho  was  once  in  jeopardy. 

But  it  is  .asserted  that  the  ITaHiuuj  Case  was  not  so  stron*'' 
for  an  al^soluto  discharge  of  the  accused  as  this  case,  for  the 
reason  that  all  the  ])r<)cpcdings  there  were  legal,  wlujreas  every 
step  in  this  case  was  illegal,  except  the  indictment,  and  that, 
say  counsel,  was  valid  when  found,  but,  by  tho  repeal  of  the 
law,  it  became  mere  waste  i)aper. 

These  conclusions  are  evidently  based  on  false  premises. 
As  before  stated,  the  indictment  was  not  invalidated,  as  a 
pleading,  by  tho  repeal  of  the  law.  And  if  the  proceedings 
attending  the  trial  wore  so  grossly  illegal,  as  alleged,  liow. 
upon  reversal  of  the  judgment,  they  would  constitute  a  bar  to 


in  a 


mg. 


» 


GARVEY'S  CASE. 


263 


another  trial,  especially  in  view  of  the  provisions  of  our  con- 
stitution, we  do  not  perceive. 

The  admission  of  the  facts  assumed  would  seem  to  conclu- 
sively establisli  the  convei'se  of  the  proposition. 

Sec.  18,  art.  2,  of  the  constitution,  provides  as  follows:    . 
"Nor  shall  any  person  be  twice  put  in  jeopardy  for  the  same 
offense.    If  the  jury  disagree,  or  if  the  judgment  be  arrested 
after  verdict,  or  if  the  judgment  be  reversed  for  error  in  law, 
tlie  accused  shall  not  be  deemed  to  have  been  in  jeopardy." 

This  judgment  was  reversed  for  erroi's  in  law,  which  con- 
sisted in  the  trial,  conviction  and  sentence  of  the  petitioner 
for  murder,  whereas  his  offense  under  the  law  apj)licable  to  his 
case  at  the  time  of  his  indictment  and  conviction  was  man- 
slaughter. 

The  case  of  Shepardv.  2'he  Peoj)U,  stqjra,  docs  not  seem  to 
have  involved  similar  constitutional  provisions. 

It  now  only  remains  to  inquire  whether  the  petitioner  can 
bo  released  from  tlie  penitentiary  upon  the  present  writ. 

Tliis  inquiry  is,  we  think,  answered  by  divisions  1  and  7, 
s:^ction  0,  of  the  haheas  corpus  act.    General  Statutes,  p.  532. 

The  statute  provides  that  if  it  appear  tliat  the  prisoner  is  in 
custody  by  virtue  of  process  from  any  court  legally  constituted, 
lie  can  bo  discharged  only  for  some  of  the  following  causes : 

^^Flrd.  Where  the  court  has  exceeded  the  limit  of  its  juris- 
diction, either  as  to  the  matter,  place,  scene  or  person." 


'^Seventh.  Where  there  is  no  general  law,  nor  any  judg- 
ment, order  or  decree  of  a  court,  to  authorize  the  process,  if 
in  a  civil  suit,  nor  any  conviction,  if  in  a  criminal  proceed- 


ing. 


We  are  of  opinion  that  the  court  below  exceeded  the  lim!t 
of  its  jurisdiction,  in  this,  that  it  pronounced  the  judgment  oi 
imprisonment  in  the  penitentiary  without  any  conviction  of 
the  prisoner. 

The  result  of  the  former  trial  had  been  wholly  annulled  by 
this  court,  and  the  cause  had  been  remanded  for  further  pro- 
ceedings. 

It  was  thcivafter,  according  to  the  foregoing  views,  pending 
in  tlie  district  court  for  trial  upon  the  charge  of  manslaughter. 

The  judgment  having  been  reversed  without  any  reservation, 


264 


AMERICAN  CRIMINAL  REPORTS. 


and  the  cause  remanded,  the  verdict  of  the  jury  fell  with  the 
judgment,  and  it  would  seem  that  no  more  authority  then  re- 
mained for  pronouncing  judgment  upon  such  verdict,  witliout 
submitting  the  case  to  another  jury,  than  existed  in  the  first  in- 
stance to  pronounce  judgment  upon  the  indictment  witliout  a 
trial  of  the  accused. 

It  Avas  held  in  People  ex  rel.  v.  Whitson,  74  111.,  20,  that  if 
the  judgment  upon  which  the  prisoner  is  held  in  custody  is 
merely  erroneous,  and  subject  to  be  reversed  on  writ  of  error, 
he  will  not  be  discharged  upon  Avrit  of  hubetis  corpus.  But  if 
the  court  had  no  power  or  jurisdiction  to  render  such  judg- 
ment, the  j)risoner  should  be  discharged. 

Our  conclusion  is  that  the  imi)risonment,  under  the  judgment 
complained  of,  is  illegal,  for  the  reason  that  the  judgment  of 
the  district  court  is  not  merely  erroneous,  but  void,  and  for 
that  reason,  and  because  of  the  non-observance  of  the  foi'nis 
of  law  in  the  proceedings  of  tlie  district  court,  the  petitioner 
nmst  be  discharged  from  the  penitentiary.  But  it  appearing  to 
this  court  that  ho  stands  legally  indicted  of  a  felony,  the  order 
will  be  that  the  petitioner  be  discharged  from  the  penitentiary, 
and  that  ho  bo  renmnded  to  the  custody  of  the  sherilf  of 
.Vrapahoe  county. 

It  is  further  ordered  that  said  sheriff  admit  the  petitioner  to 
bail  upon  his  executing  a  bond  in  the  sum  of  §5,000,  with  suffi- 
cient sureties,  and  in  form  and  conditioned  as  required  by  the 
lidheas  coipus  act,  said  bond  to  be  approved  by  the  sheriff  of 
Arapahoe  county. 


Chkaney  v.  The  State. 

(80  Ai-k.,  74.) 

iMPpisoNMENT :  Meaning  thereof —^  Fine  and  costs  — Bill  of  exceptions, 

1.  Bill  op  exceptions.— Unless  instructions  are  embodied  in  the  bill  of 

exceptions  the  supreme  court  cannot  judge  of  their  alleged  error. 

2.  Imprisonment  for  fine  and  cost.— In  all  our  penal  l«>gislation  the  wonl 

"  imprisonment "  means  imprisonment  in  the  county  jail  or  Iwal  ])ri8on. 
unless  expressed  to  be  in  the  i)enitentiary ;  and  the  statutes  luoviding 
for  the  UupriHonuient  of  a  defendant  until  tho  flue  oud  oust  be  paid 


CHEANEY  V.  THE  STATE. 


MS 


refer  to  misdemeanors  and  not  to  f elonie  * ;  and  a  defendant  convicted 
of  a  felony  and  sentenced  to  the  penitentiary  for  a  fixed  term,  and  the 
payment  of  a  fine,  cannot  be  continued  in  prison  after  tlie  expiration  of 
said  term,  by  reason  of  the  non-payment  of  the  fine  and  cost,  either  in 
the  penitentiary  or  county  jail. 

Error  to  Pope  Circuit  Court.    Hon.  W.  D.  Jacoway,  Circuit 

Judge. 

Z7.  J/.  7?os6',  for  appellant. 

English,  C.  J.  At  the  November  term,  1879,  of  the  circuit 
court  of  Franklin  county,  P.  O.  Cheaney  was  indicted  for  se- 
(Uiction  under  a  false  promise  of  marriage. 

Tlic  indictment  charged  tluit  "said  P.  O.  Cheaney,  on  the 
•>M\  (lay  of  June,  1879,  in  the  county  of  Franklin,  etc.,  being 
ti  single  and  unmarried  man,  unlawfully  and  feloniously  did 
obtain  carnal  knowledge  of  one  Mary  Head,  a  single  and  un- 
married female,  by  virtue  of  a  false  exju-ess  promise  of  marriage 
to  her  previously  made  by  the  said  I*.  O.  Cheaney,  against  the 
peace,"'  etc. 

Defendant  demurred  to  the  indictment  on  the  ground  that  it 
did  not  substantially  conf(n'm  to  the  statute,  and  did  not  state 
facts  which  constituted  a  public  offense. 

The  court  ov^erruied  the  demurrer;  and  on  the  application  of 
defendant  the  venue  was  changed  to  the  circuit  court  of  Pope 
county,  where  the  case  was  trieil  at  the  March  term,  1880,  on 
pica  of  not  guilty,  and  the  jury  found  defendant  guilty  and 
assessed  his  punishment  at  a  line  of  $1,000  and  imprisonment  in 
the  penitentiary  for  one  j'^ear. 

The  coui't  rendered  judgment  that  the  defendant  be  im- 
prisoned in  the  penitentiary  for  one  year;  and  that  the  state 
recover  of  him  the  fine  of  $1,000  assessed  by  the  jury,  and  the 
costs,  \\m\  that  if  the  line  and  costs  were  not  paid  by  the  ex- 
piration of  his  term  of  imprisonment,  he  be  further  imprisoned 
in  the  penitentiary  until  they  were  paid,  but  that  his  confine- 
ment for  fine  and  costs  should  not  exceed  one  day  for  each 
two  dollars  thereof,  etc. 

After  defendant  was  sentenced  the  court  permitted  him  to 
lllo  a  motion  to  sot  aside  the  judgment  and  grant  him  a  new 
trial,  which  the  court  overruled,  and  ho  took  -a  bill  of  excep- 
tions and  afterward  brought  error. 


'tl     RV. 


K:i^ 


1 


266 


AMERICAN  CKimNAL  REPORTS. 


I.  The  indictment  was  drafted  under  the  following  statute : 
"Any  person  who  shall  bo  convicted  of  obtaining  carnal 
knowledge  of  any  female  by  virtue  of  any  feigned  or  preteiuled 
marriage,  or  of  any  false  or  feigned  express  promise  of  mar- 
riage, shall,  on  conviction,  be  imprisoned  not  exceeding  two 
years  in  the  penitentiary,  and  fined  in  any  sum  not  exceeding 
$5,000 ;  but  no  person  shall  be  convicted  of  said  crime  upon  tlio 
testimony  of  the  female,  unless  the  same  be  corroborated  by 
other  evidence."  Act  of  April  12,  1869 ;  Gantt's  Digest,  sec. 
1319. 

The  indictment  alleges,  in  form  substantially  good,  all  tlie 
material  facts  requisite  to  constitute  the  crime  of  seduction  by 
false  express  promise  of  marriage  under  the  statute,  and  the 
demurrer  to  it  was  properly  overruled. 

II.  The  material  allegations  of  the  indictment  were  suffi- 
ciently proved  by  the  testimony  of  the  injured  female,  tak(Mi  in 
connection  with  admissions  made  by  defendant  to  several 
witnesses.  The  evidence,  looking  at  the  whole  of  it,  docs  not 
make  a  case  of  rape  as  suggested  by  counsel  for  plaintilF  in 
error,  but  sustains  the  charge  of  seduction  by  false  promise  of 


marriage. 


The  question  of  force  was  submitted  to  the  jury  by  tlu)  sixth 
instruction  moved  for  defendant,  and  given  by  the  co  t,  wliicli 
was  as  follows: 

"  If  the  jury  believe  that  the  defendant  did  obtain  carnal 
knowledge  of  the  said  Mary  Head,  but  that  the  same  was  doiu; 
forcibly,  against  the  will,  and  contrary  to  the  desire  and  con- 
sent of  said  jMary  Head,  then  they  nmst  acquit." 

III.  The  bill  of  exceptions  shows  that  eleven  instructions 
were  moved  for  defendant ;  that  the  court  gave  the  fifth  and 
sixth  and  refused  the  others;  then  follows  the  statement  tliat 
"the  court,  in  lieu  of  the  instructions  asked  for  by  dofeiKl- 
ant,  gave  the  following" — but  none  are  set  out.  Those  in- 
structions sliould  have  been  brought  upon  the  record  by  tlic 
bill  of  exceptions,  so  that  we  could  see  whetlier  the  court 
erred  in  giving  them  in  lieu  of  such  of  defendant's  as  were 
refused. 

IV.  On  the  motion  of  the  prosecuting  attorney,  the  court 
gave  six  instructions,  the  defendant  objecting  to  the  second 
only. 


CHEANEY  V.  THE  STATE. 


267 


In  the  first  the  court  stated  to  the  jury  the  offense  charged, 
and  the  second  follows: 

"  To  sustain  this  charge  it  must  appear  from  the  evidence, 
first,  that  Jie  defendant  did  obtain  carnal  knowledge  of  Mary 
Head ;  second,  that  ho  did  so  by  virtue  of  an  express  promise  of 
marriage  which  was  false,  and  was  made  by  the  defendant  alone 
for  the  purpose  of  obtaining  such  carnal  knowledge ;  third,  that 
such  false  pi'omise  was  made  in  such  manner  aiul  under  such 
circumstances  as  to  induce  said  Mary  Head  to  believe  that  it 
was  not  false,  but  was  sincere  and  true,  and  that  so  believing  she 
submitted  to  his  embraces,  when  otherwise  she  would  not  have 
permitted  such  intimacy ;  fourth,  these  facts,  if  proven  to  the 
satisfaction  of  the  jury,  satisfying  their  minds  beyond  a  rea- 
sonable doubt,  togetlier  with  the  further  facts  tliat  the  offense 
was  committed  in  Franklin  county,  etc.,  and  at  some  time 
within  three  j'cars  next  before  the  linding  of  the  indictment, 
are  suificient  upon  which  to  convict  the  defendant." 

Xo  objection  to  this  instruction  has  been  made  by  counsel 
here,  and  we  see  notliing  in  it  that  could  bo  the  subject  of  a  well- 
founded  o1)jecti(m  on  tlie  pai't  of  the  accused. 

V.  It  was  objected  in  the  court  below  that  the  court  erred 
m  so  mucli  of  tlie  judgment  as  sentenced  defendant  to  further 
imprisonment  in  the  ])enitentiary,  after  the  expiration  of  the 
term  of  one  year  fixed  by  the  verdict,  for  the  payment  of  the 
line  and  costs,  at  one  day  for  each  two  dollars  thereof,  should 
the  same  not  be  paid  by  the  time  the  fixed  period  of  imprison- 
ment expired. 

Under  the  Revised  Statutes,  before  the  penitentiary  was  es- 
tablished, many  felonies,  as  well  as  misdemeanors,  were  made 
punishable  by  fines,  etc.  See  Eevised  Statutes,  Criminal  Juris- 
prudence. 

If,  on  conviction,  a  fine  and  costs  were  not  paid,  the  defend- 
ant was  committed  to  jail  until  they  were  paid,  but  might  be 
released  under  the  insolvent  act;  or  the  court  or  judge  might 
order  him  imprisoned  for  a  limited  time  in  lieu  of  the  fine,  etc. 
Id.,  Criminal  Practice,  sees.  10!)  and  201. 

By  the  act  of  the  17th  of  December,  1838  (Acts  of  1838, 
p.  121),  modifying  the  Penal  Code  to  correspond  with  the 
ostnblishmont  of  a  penitentiary,  no  felony  was  made  punish- 
able by  tine,  but  all  felonies  were  made  punishable  by  imprison- 


268 


AMERICAN  CRIMINAL  REPORTS. 


•I 


} 


■ 


ment  in  the  penitentiary  or  by  death.  In  other  words,  the  act 
provided  for  no  line  where  imprisonment  in  the  penitentiary 
was  made  the  punishment  for  an  offense. 

So  after  the  passage  of  this  act  it  was  in  misdemeanors  onlv 
that  ])ersons  were  subject  to  imprisonment  in  jail  for  lines  and 
costs,  under  the  provisions  of  the  Kevised  Statutes  above  cited. 

After  the  passage  of  the  penitentiary  act  of  17th  Decem- 
ber, 1S3S,  the  legislature  passed  as  many  as  seven  acts  (includ- 
ing- tlie  one  under  which  plaintilf  in  error  was  indicted)  providing 
for  the  punishment  of  pai'ticular  offenses  n:uned  in  tliem  by 
both  lines  and  imprisonment  in  the  penitentiary.  See  Gantt's 
Digest,  pages  330,  343,  348,  351,  350,  307  and  372.  But  in 
none  of  these  acts  except  the  slander  act  (Gantt's  Digest,  p.  372) 
is  there  any  provision  that  the  person  convicted  shall  be  con- 
lined  in  the  jjenitentiar}'"  until  the  fine  be  paid. 

The  code  of  practice  m  criminal  cases  which  went  into  effect 
the  1st  of  January,  1800,  contained  two  sections  providing  lor 
inij)risonment  for  fines.     The  first,   under  the    title  "Judg 
ment,"  chap.  IX,  sec.  283,  follows: 

"  If  the  punishment  of  an  oirense  be  a  fine,  the  judgment 
may  direct  that  the  defendant  be  imprisoned  until  the  line  is 
paid,  s]iecifying,  however,  the  extent  of  im})risonment,  which 
shall  not  exceed  one  day  for  each  two  dollars  of  tlie  iine." 
This  became  sec.  1001,  Gantt's  Digest  Crim.  Pro. 

The  second,  under  the  title  "  Execution,"  chap.  X,  sec.  20!> 
(of  Cr.  Code),  follows: 

''  The  defendant  shall  not  be  held  in  confinement  under  the 
execution  for  a  fine,  for  a  longer  period  than  at  the  rate  of  (»no 
day  for  each  two  dollars  of  the  fine;  but  such  imprisonment 
shall  not  discliarge  the  fine,  which  thereafter  can  only  be  col- 
lected by  proceeding  against  the  defendant's  property.  But 
the  provisions  of  this  section  shall  not  ai)ply  to  judgments  in 
city  or  police  courts,  which  may  be  discharged  by  confinement 
in  the  work-house,  according  to  the  provisions  of  the  special 
statutes  regulating  them."  This  became  sec,  20U0  of  Gantt's 
Digest  Crim.  Pro. 

Neither  of  the  above  sections  provides,  in  terms,  for  impiis- 
onment  in  the  penitentiary  for  a  fine;  and  the  first  clause  of 
the  first  section:  "If  the  punishment  of  the  offense  be  a 
jf?n<?,"  and  the  first  clause  of  the  second  section :    "  The  defend- 


CHEANEY  V.  THE  STATE. 


ant  shall  not  bo  held  in  confinement  for  a  Jine,''^  indicate  their 
ii|)i)licati(>u  to  misdemeanors. 

J5y  act  of  March  25,  1871,  it  was  provided  that  in  all  prose- 
cutions in  cases  less  than  felonies,  in  courts  of  justice  of  the 
peace,  and  in  other  inferior  courts,  the  i)rosecutor  should  give 
bond  for  costs,  etc.,  etc.  And  it  was  further  provided  that : 
"  If  the  accused  be  convicted,  the  court  rende^'iug  the  judg- 
ment shall,  in  addition  to  the  fine  or  imprisonment  which  it 
shall  impose  on  the  person  convicted,  render  judgment  against 
such  person  for  all  costs  accrued  in  the  case ;  and  if  such  costs 
are  not  immediately  paid,  such  convicted  person  shall,  besides 
undergoing  the  penalty  adjudged  against  him,  be  confined  in 
the  county  jail  at  the  rate  of  one  day  for  every  two  dollars 
adjudged  against  him  for  line  and  cots,  and  then  the  county 
sliall  pay  the  '^^ats  of  said  prosecution."  See  Gantt's  Digest, 
sees.  2020-22. 

On  the  21th  of  IMarch,  1875,  the  following  act  Avas  passed: 

"  That  section  nineteen  hundred  and  ninetj'-one  (1991)  of 
Gantt's  Digest  be  amended  so  as  to  read :  '  If  the  punishment 
of  an  oirense  be  a  fine,'  the  judgment  shall  direct  that  the 
defendant  be  imprisoned  until  tlio  line  and  costs  are  paid, 
specifying,  howevei*.  the  extent  of  imprisonment,  which  shall 
not  exceed  one  day  for  each  dollar  of  the  fine  and  costs."  Acts 
1S71-5,  p.  270. 

By  act  of  JNfarch  10,  1877,  the  last  act  on  the  subject,  a 
person  convicted  of  any  misdemeanor  or  petty  offense  in  any 
of  the  courts  of  this  state,  and  committed  to  jail  in  default  of 
payment  of  fine  and  costs,  is  .  eniiired  to  discharge  the  same  by 
manual  lal)or  on  public  works,  or  be  hired  out  until  the  fine 
and  costs  be  paid,  at  not  exceeding  one  day  for  each  seventy- 
five  cents  of  the  fine  and  costs.     See  Acts  1877,  p.  73. 

In  all  our  penal  legislation,  when  the  word  imprisonment 
only  is  used,  it  is  understood  to  mean  imprisonment  in  a  county 
jail  or  local  prison,  and  when  the  legislature  has  intended 
imprisonment  in  the  penitentiary  it  has  been  so  expressed. 

After  a  careful  review  of  all  the  statutes  on  the  subject,  our 
opinion  is  that  the  court  below  eri'ed  in  so  much  of  the  judg- 
ment as  sentenced  plaintiff  in  error  to  imprisonment  in  the 
penitentiary  until  the  fine  and  costs  were  paid. 

So  much  of  the  judgment  as  is  for  one  year's  imprisonment 


270 


AMERICAN  CRIMINAL  REPORTS. 


in  the  penitentiary  as  punishment,  and  for  tlie  $1,000  fine  and 
costs,  must  be  aflirmed,  and  so  much  as  is  for  imprif;oniiiont  in 
the  penitentiary  at  82  per  day  until  the  line  and  costs  are  puid 
must  be  reversed. 

If  tlic  legislature  shall  deem  it  good  policy  and  just  to  im- 
prison persons  in  the  penitentiary  for  linos  and  costs,  in  sncli 
felonies  as  fines  may  be  imposed  as  part  of  tlio  punislniiont,  it 
must  be  expressly  provided  for,  as  was  specially  done  m  the 
slander  act.     Gantt's  Digest,  sec.  1551. 

VI.  I>ut  tlie  further  question  is  pi'csented,  wliether  this  court 
will  render  judgment  that  if  the  line  and  costs  be  not  paid  by 
plaintiff  in  error  before  the  term  of  his  imprisonment  in  the 
penitentiary  for  the  offense  of  which  he  was  convicted  and  sen- 
tenced sliall  expire,  ho  bo  delivei*ed  on  the  expiration  of  tlio 
term,  by  tlie  keeper  of  the  penitentiary,  to  the  sheritT  of  Pope 
county,  to  be  there  imprisoned  in  the  county  jail  for  lines  and 
costs,  etc. 

This  cannot  be  done  imder  the  act  of  March  10, 1877,  because 
that  act  exju'essly  applies  to  fines  and  costs  in  misdemeanors 
and  petty  offenses  only,  and  not  to  felonies. 

If  we  go  back  of  that  act  to  the  act  of  ]\rarch  24,  1875, 
above  copied,  we  should  have  to  direct  that  ho  be  confined 
in  jail  for  one  thousand  days  for  the  line  and  a  day  for  each 
dollar  of  costs,  and  that  in  idleness  and  at  the  public  ex- 
pense; for  that  act  makes  no  provision  to  put  him  at  labor 
upon  public  works  or  to  hire  him  out  for  the  jmyment  of  the 
fine  and  costs,  as  does  the  act  of  ]\rarch  10,  1877. 

Moreover,  by  the  act  of  the  10th  of  March,  1877,  the  legis- 
lature seems  to  have  abandoned  the  former  policy  of  confining 
persons  in  jail  in  idleness,  and  at  the  public  expense,  for  lines 
and  costs. 

Under  the  present  aspect  of  the  legislation,  we  shall  decline 
to  make  any  order  for  his  confinement  in  the  county  jail  for 
the  fines  and  costs,  and  leave  the  state  to  her  remedy  l)y  execu- 
tion against  his  goods  and  chattels,  lands  and  tenements,  if  he 
has  or  may  acquire  any. 

The  clerk  of  this  court  will  make  out  and  certify  to  the 
keeper  of  the  penitentiary  the  judgment  of  this  court,  modi- 
fying the  judgment  of  the  court  below,  as  above  indicated. 


STEWART  V.  THE  STATE. 


BISSKNTINO. 

Eakin,  J.  I  concur  in  sustaining  the  conviction  in  this  case, 
ami  in  holding  void  so  much  of  the  sentence  as  provides  that 
defendant  shall  be  retained  in  the  penitentiary  until  the  line 
bo  paid. 

In  vioAV,  also,  of  the  slight  uncertainty  of  the  result  of  legis- 
lation, I  think  it  well  to  make  no  specific  order  for  the  de- 
livery of  the  defendant  to  the  shorilf  of  his  county,  after  the 
expiration  of  his  term  in  the  penitentiary.  It  is  not  necessary. 
Tlio  duties  and  pouers of  the  sheriff  are  prescribed  hy  general 
provisions  of  the  law ;  no  ordei's  are  required.  I  do  not  con- 
cur in  holding  the  act  of  starch  iii,  1875,  to  be  so  far  repealed, 
by  implication,  that  a  fine  imposed  as  a  part  of  the  punishment 
ill  felony  can  now  be  collected  only  by  civil  process.  The  act 
of  the  lOth  of  March,  1877,  seems  to  be  confined  to  misde- 
meanor, leaving  the  former  act  otherwise  intact. 


Stewakt  v.  TiiK  State. 

I  (39  Ohio  St.,  152.) 

Incest:  Brotlicr-in-laic  and  suter-in-law, 

A  brothor-in-Iaw  and  sister-in-law  are  nearer  of  kin  by  affinity  than  cousins, 
witliin  tlu;  meaning  of  the  statute  preBcribing  the  punishment  of  incest. 

Motion  for  leave  to  file  a  petition  in  error  to  the  court  of 
common  pleas  of  Washington  county. 

Nye  d;  Oldham,  for  the  motion. 

J).  A.  //f^>///«j/.?<w;'//i,  attorney-general,  and  Z.  W.  Ellenwood, 
prosecuting  attorney,  contra. 

l>y  the  Court.  The  defendant,  Stanton  E.  Stewart,  was  in- 
dicted for  incest,  the  indictment  charging  him  with  having 
cominitted  adultery  with  one  Etta  Drake,  "  the  said  Stanton 
E.  Stewart  and  the  said  Etta  Drake  being  then  and  there 
nearer  of  kin,  by  allinity,  than  comiins,  to  wit,  the  said  Etta 
Drake  being  then  and  there  the  sister  bv  alRnitv,  said  relation 
being  commonly  known  as  sister-in-law,  of  the  eaid  Stanton  E. 


272 


AMERICAN  CRIMINAL  REPORTS. 


Stewart,"  and  tlie  only  qnestion  presented  is  wliethcr  tlio  in- 
dictment contains  a  sufficient  statement  of  the  rolationsliip 
between  the  defendant  av;  1  Etta  Drake.  It  is  claimed  tliat  the 
indictment  is  in  this  respect  bad:  1st,  because  it  does  not  state 
how  the  rehitionship  was  created,  and  that  it  still  subsists;  and 
2d,  because  no  relatives  by  affinity  are  nearer  of  kin  tlian 
cousins  by  consanguinity,  tliere  being  no  mode  of  comparison 
between  relatives  by  affinity  and  relatives  by  consanguinity. 

The  first  objection  to  the  indictment  is  disposed  of  by  the 
decision  in  the  case  of  Nolle  v.  The  State,  22  Ohio  St.,  541. 

The  second  objection  cannot  be  sustained.  The  statute  pro- 
scribes the  punishment  of  persons  having  sexual  intcrcoui-se, 
who  are  "nearer  of  kin  by  consanguinity  or  affinity  than 
cousins,  having  knowledge  of  their  relationship,"  and  we  are 
of  opinion  that  under  this  statute  the  degrees  of  relationsliip 
by  affinity  are  to  be  determined  in  the  same  manner  as  degrees 
of  relationship  by  consanguinity,  and  that  a  brother-in-law  and 
a  sister-in-law  are,  within  the  meaning  of  this  statute,  nearer 
of  kin  than  cousins. 

Any  other  construction  of  the  statute  would  exclude  from 
its  operation  all  relatives  by  affinity. 

Motion  overruled. 


Van  Houten  v.  State. 

(46  N.  J.,  16.) 
Indecent  exposure:  Intent, 


1.  The  crime  of  indecent  exposure  is  committed  if  a  person  intentionally 
makes  sucli  exposure  in  the  view  from  tlie  windows  of  two  neigliboi- 
ing  dwelling-liouses. 

8.  It  is  not  necessary  that  any  person  should  actitally  see  such  exposure,  if 
it  was  made  in  a  public  place  with  the  intent  that  it  should  be  seen,  and 
persons  were  there  who  could  have  seen  if  they  had  looked. 

On  writ  of  error  to  the  Essex  Sessions.         . 


Edward  M.  Colic,  for  the  plaintiff  in  error. 
Oscar  Keen,  prosecutor  of  the  pleas,  for  the  state. 


VAN  HOUTEN  v.  STATE. 


The  opinion  of  the  court  was  dolivered  by 

TJkasi.et,  Chief  Jttstice.  This  Avas  an  indictment  charging 
the  defendant  with  indecent  exposure.  The  criminal  act  al- 
leged was  that  the  defendant,  in  urinating,  intentionally  exposed 
his  nakedness  in  a  public  place.  The  transaction  in  question 
occurred  in  the  yard  of  a  house  which  was  occupied  in  part  by 
the  defendant  and  in  pait  by  the  prosecutors.  The  defendant 
himself,  when  on  the  stand  as  a  witness,  admitted  that  if  he 
had  done  the  act  in  the  place  designated  by  the  prosecutors  in 
their  testimony,  he  would  have  ex[)osed  himself  to  the  windows 
of  two  dwelling-houses  that  were  then  inhabited  and  were 
close  to  the  locus  in  quo.  The  defendant,  at  the  trial,  in  his 
own  testimony,  denied  that  he  occupied  the  position  in  ques- 
tion, and  asserted  that  at  the  time  of  the  occurrence  ho  had 
betalc(ni  himself  to  a  place  retired  from  observation. 

If  tlie  state's  account  of  this  alTair  was  the  truth,  there  can 
be  no  doubt  that,  in  a  legal  sense,  the  act  complained  of  was 
done  in  a  public  place.  Accepting  tluit  version  as  the  true 
one,  tlie  defendant  ex})osed  himself  so  that  he  could  be  seen 
from  the  wiiulows  of  two  dwelling-houses  that  were  within  a 
few  feet  of  the  place  of  the  occurrence.  If  it  were  tlie  law 
that  a  man  could  lewdly  expose  his  naked  person  to  the  in- 
mates of  two  dwelling-houses,  as  was  said  in  the  case  of  Beg. 
V.  Holmes,  G  Cox,  C.  C,  21G,  "  this  would  not  be  a  country  fit 
to  live  in  if  such  an  abominable  outrage  could  go  unpunished." 

According  to  the  law  of  this  offense  the  place  is  a  public  one 
if  the  exposure  is  such  that  it  is  likely  to  be  seen  by  a  number 
of  casual  observers.  In  the  case  of  Beg.  v.  Fart'ell,  9  Cox,  C. 
C,  440,  which  is  an  authority  relied  upon  by  the  defense  in 
the  present  instance,  it  was  declared  that  by  an  indecent  ex- 
posure in  a  place  not  far  from  a  highway,  the  common  law 
otfcnse  had  not  been  committed,  but  the  court  was  careful  to 
supplement  its  decision  with  the  remark  "  that  it  is  not  to  be 
talcen  that  we  lay  down  that  if  the  prisoner  was  seen  by  one 
person,  but  there  was  evidence  that  otiiers  might  have  wit- 
nessed the  offense  at  the  time,  we  would  not  uphold  the  con- 
viction." 

On  the  facts  of  the  case,  if  the  jury  took  them  as  stated  by 
the  witnesses  for  the  prosecution,  the  place  of  the  alleged 
Vol.  IV— 18 


274 


AMERICAN  CRBUNAL  REPORTS. 


olTensG  was  a  public  place,  and  if  the  jud^e  had  so  told  the 
jury  his  charge  in  that  respect  would  have  been  legal,  and 
would  have  comprised  all  that  he  could  be  required  to  say  on 
the  subject.  The  same  testimony  proved  that  when  in  that 
position  he  was  seen  by  them  to  make  an  indecent  exposure  of 
his  person.  Upon  this  subject  the  trial  judge  charged  in  these 
words:  "I  think  the  true  principle  is,  and  I  so  instruct  you, 
that  as  a  general  proposition  the  place  where  the  exposure  is 
made  should  be  public;  but  that  it  is  sufficient  if  the  place  is 
not  ordinarily  public,  but  only  so  in  consequence  of  persons 
being  temporarily  assembled  there;  and,  further,  that  there  is 
no  nee;l  that  the  exposure  should  be  actually  seen  by  any  one, 
provided  that  it  wac  made  to  bo  seen,  and  those  who  were 
there  could  have  seen  it  if  they  had  looked ;  and  if  so  made, 
the  place  being  public,  it  is  immaterial  whether  the  exposure 
was  made  to  one  person  or  to  many." 

In  my  opinion  this  extract  from  the  charge  contains  a  proper 
expression  of  the  law  on  this  general  subject,  but  that  part  of 
it  which  consists  of  the  declaration  that  the  delinciuont  need 
not  be  seen  by  any  one  was  not  germane  to  the  case,  for  both 
witnesses  on  the  part  of  the  state  had  unequivocally  tcstifiod 
that  they  had  seen  the  indecent  exposure  in  question.  This 
was  an  essential  part  of  their  statement,  and  it  is  not  within 
the  range  of  possibility  that  the  jury  could  have  convicted  the 
defendant,  on  their  testimony,  of  the  offense  charged,  and  at 
the  same  time  rejected  their  averment  that  they  saw  it.  (j)n- 
sequently,  if  the  charge  Avas  faulty  in  holding  that  the  defend- 
ant was  guilty,  although  no  one  actually  saw  the  indecent 
exposure  made  by  him,  an  exception  on  that  ])oint  could  not 
avail  in  this  Avrit  of  error,  as  such  misstatement  of  the  law 
couhl  not  have  prejudiced  the  defendant  on  the  trial  of  the 
merits  of  the  case.  But,  as  I  have  said,  I  do  not  think  that, 
even  with  respect  to  legal  theory,  there  was  any  fallacy  in  the 
charge  in  this  particular. 

The  jury  were  further  instructed,  on  the  subject  of  ci'iniinal 
purpose,  in  the  following  language :  "  I  instruct  you  that  the 
testimony  must  show  that  the  exposure  was  not  inercly  acci- 
dentcal,  and.  in  order  to  convict  the  defendant,  you  ought  to  Ik 
sjitisflcd,  from  the  testimony,  that  the  exposure  was  intentional, 
at  such  time  and  place,  and  in  such  manner,  as  to  offend  against 


Tl 

wan 
consi 
or  an 
send 


STATE  V.  SMITH. 


275 


public  decency ;  but  intent  may  be  inferred  from  recklessness. 
It  is  not  necessary  tliat  some  witness  should  testify  that  tho 
defendant  had  said  that  he  intended  to  commit  the  act ;  you 
can  infer  what  he  intended  to  do  from  what  he  actually  did  do." 

This  also  was  a  correct  statement  of  the  law  on  this  branch 
of  the  case,  and,  taken  in  connection  Avith  the  previous  instruo- 
tion  above  referred  to,  was  all  that  could  be  properly  required. 
The  defense,  indeed,  requested  that  the  court  should  charge 
tlio  jury  with  respect  to  ci[^;;hteen  legal  propositions,  Avhich 
were  submitted  in  writing,  but  the  whole  of  them  were  prop- 
erly rejected,  as  all  the  law  appertaining  to  the  matter  in  issuo 
had  been,  Avith  entire  clearness  and  correctness,  already  ex- 
pounded. 

Tho  judgment  should  bo  affirmed. 


State  v.  Smith. 

(40  N.  J.,  49. .) 

Indecent  letter  to  female  :  Indictment  for. 

An  averment  in  an  indictment  that  the  defendant  "  unlawfully,  wilfully 
and  wantonly  sent "  an  indecent  letter  to  a  female  is  not  sufficient  to 
show  an  offense  under  a  statute  which  makes  it  a  misdemeanor  "  wil- 
fully and  wantonly  "  to  send  such  a  letter  to  a  female,  without  lawful 
purpose  in  sending  the  same. 

On  motion  to  quash  indictment. 

P.  W.  Sfaff(j,  for  the  defendant. 
A.  D.  Ca)nj}hell,  for  the  state. 

The  opinion  of  the  court  was  delivered  by 

Dixon,  J.  The  defendant  was  indicted  in  the  Bergen  county 
oyer  and  terminer,  under  the  act  to  suppress  the  sending  of 
indecent  communications,  approved  March  20,  1878.  Pamph. 
L,  p.  211. 

This  act  makes  it  a  misdemeanor  for  any  ]ierson  wilfully  and 
wantonly  to  send  or  convey  to  any  female,  aj^ainst  her  will  and 
consent,  any  insulting,  indecent.  lascivious,  disgusting,  offensive 
orannoying  letter  oi-conmiunication,  without  lawful  purpose  in 
sending  or  conveying  the  same. 


276 


AMERICAN  CRIMINAL  REPORTS. 


The  indictment  charges  the  defendant  with  unlawfully,  wil- 
fully and  wantonly  sending  such  a  letter  to  R.  A.,  a  female, 
against  her  will  and  consent,  but  does  not  allege  that  ho  diil  so 
without  lawful  purpose  in  sending  the  same.  For  this  defect 
the  defendant  moves  to  quash  the  indictment. 

As  to  statutory  offenses  the  invariable  rule  is  that  every 
fact  mentioned  in  the  statute  as  constituting  the  crime  must  be 
averred  in  the  indictment.    Zahriskie  v.  State,  14:  Vroom,  (!40, 

The  abronce  of  a  lawful  purpose  in  sending  the  communica- 
tion is  undoubtedly  made  by  the  statute  a  necessary  ingredient 
of  the  offense,  and  therefore,  if  the  indictment  does  not  charge 
it,  it  is  insutficient.  The  prosecutor,  conceding  this,  claims  tliat 
the  requisite  allegation  appears  in  the  statement  that  the  de- 
fendant unlaicfuUy  sent  the  letter.  The  question,  therefore,  is, 
whether  this  is  necessarily  an  equivalent  averment,  for  no  in- 
tendment can  be  made  against  the  defendant. 

We  think  that  it  plainly  is  not.  The  statement  that  the  de- 
fendant unlawfully  sent  the  letter  may  be  based  upon  some 
idea  that  the  mode  of  sending  it  was  unlawful.  It  does  not 
necessarily  indicate  a  want  of  lawful  purpose  in  the  mind  of 
the  defendant.  We  therefore  cannot  see,  on  the  face  of  the 
indictment,  that  the  grand  jury  were  satisfied  that  the  defend- 
ant had  committed  the  statutory  misdemeanor,  and  for  this 
reason  the  indictment  must  be  quashed. 


State  v.  Graham. 

,  3  Ark.,  519.) 

Indictment:  Statnlory  offense  — Conatntction, 

1.  Indictment  must  allege  the  facts,  not  a  conclusion  of  law.— An 
indictment  must  allegu  the  special  matter  of  the  whole  fact  with  8uch 
certainty  that  the  ollense  may  jiulicially  appear  to  the  court.  It  Ls  not 
Bufficient  to  charge  a  conclusion  of  law. 

8.  Cuabgino  offense  in  language  of  the  statute.— It  is  sufficiont.  ns 
a  general  rule,  to  charge  a  statutory  ofTense  in  tlio  words  of  tlie  stat- 
ute ;  but  when  a  more  particjular  statemeiit  of  tlie  facts  is  necessary  to 
Bet  it  forth  with  retjuisite  certainty,  tliey  mu.st  be  averred. 

8.  Constuuction  of  criminal  statutes.  —  Criminal  statuttM  must  lio 
strictly  construed,  and  no  case  is  brouj;ht  by  construction  within  a  stat- 
ute unless  it  is  «;ompk'tely  within  its  words. 


STATE  V.  GR/IHAM.  277 

Apjieal  from  Izard  Circuit  Court.     lion.  R.  H.  Powell,  Judge. 

C.  B.  Moore,  attorney  general,  for  appellant. 
J.  L.  Aheniethy,  for  appellee. 

IlARRisoy,  J.  The  indictment  did  not  set  forth  the  means 
by  which  the  defendant  Avas  informed  that  Cook  had  com- 
mitted tlie  alleged  offense.  It  merely  charged  a  legal  concli*- 
sion,  without  setting  forth  the  facts  from  which  it  was  drawn 
or  inferable.  An  indictment  siiould  set  forth  the  special  mat- 
ter of  the  whole  fact  with  such  certainty  that  the  offense  may 
judicially  appear  to  the  court,  and  it  is  not  enough  to  chargo 
a  conclusion  of  law.     1  AVhart.  Crim.  Law,  sec.  285. 

The  indictment  liere,  it  is  true,  follows  the  language  of  the 
statute,  act  of  February  10,  1875,  "to  prohibit  the  carrying 
of  side  arms  and  other  deadly  weapons ; "  and  it  is,  as  a  general 
rule,  sulHcient  to  charge  an  offense  created  by  statute  in  the 
words  of  the  statute ;  but  the  rule  is  subject  to  the  qualification 
that  where  a  more  particular  statement  of  facts  is  necessary  to 
sot  it  forth  with  requisite  certainty,  they  must  be  averred.  To 
set  forth  the  offense  with  sufficient  certainty  and  deliniteness, 
if  the  defendant  were  subject  to  indictment  under  the  statute, 
it  should  have  b(ien  charged  that  information  of  Cook's  offense 
had  been  given  iiim  on  tlie  oath  of  some  person,  or  that  he  had 
personal  knowledge  of  it.  But  we  are  of  the  opinion  that,  as 
tlio  statute  only  s})eaks  of  justices  of  the  peace,  it  is  in  its  appli- 
cation confined  to  them,  and  has  no  application  to  mayors  of 
cities  and  towns,  and  that  the  defendant  could  not  be  indicted 
under  it. 

Criminal  statutes  are  to  be  strictly  construed,  and  no  case  is 
to  bo  brought  by  construction  within  a  statute  unless  it  is  com- 
pletely within  its  words.  Hawkins  says:  "No  parallel  case, 
wliicli  comes  within  the  same  mischief,  shall  bo  construed  to  be 
within  the  purview  of  it  (the  statute)  unless  it  can  be  brought 
within  the  meaning  of  the  words."  2  Hawk.  P.  C,  188,  see. 
IG.  And  I'ishop  says:  "If  a  case  is  fully  within  the  mischief 
to  be  remedied,  and  is  even  of  the  same  class,  and  within  the 
same  reason  as  other  cases  enumerated,  still,  if  not  within  the 
words,  construction  will  not  be  permitted  to  bring  it  within 
the  statute."     IJish.  Stat.  Crimes,  sec.  220. 

The  demurrer  to  the  indictment  was  rightly  sustained. 

«  Affirmed, 


Ttv^ 


278 


AMERICAN  CRIMINAL  REPORTS. 


State  v.  Scaelett. 

(38  Ai-k.,  503.) 

I^fDICTMENT:  Exception  in  statute  to  be  negatived. 

An  indictment  for  selling  liquor  within  tbreo  miles  of  Evening  Shade  Col- 
lege must  aver  that  the  sale  was  not  for  medical  purpo?  03  by  a  regular 
practicing  physician,  who  had  made  and  recorded  the  oi&davit  re- 
quii-ed  by  the  act  of  26th  of  February,  1879. 

Error  to  Sharp  Circuit  Court.  Hon.  E.  II.  Powell,  Circuit 
Judge. 

IT.  B.  Ifoore,  attorney-general,  for  plaintiff  in  error. 
Scarlett,  pro  se. 

IIarrisok,  J.  The  indictment  in  this  case  is  bad.  It  did  not 
negative  the  exception  in  the  act,  or  aver  that  the  sale  of  tho 
ardent  spirits  was  not  for  medical  purposes  by  a  regular  practic- 
ing physician,  and  who  had  made  and  recorded  the  allidavit  prc- 
Bcribod  by  the  act.  1  Bish.  Crim,  Pi'oc,  sees.  031,  C3G;  1  Cliit. 
Crim.  Law,  284;  Thompson  v.  The  State,  37  Ark.,  40S.  As  for 
that  reason  the  jmlgment  must  be  affirmed,  Ave  need  not  con- 
sider the  exceptions  taken  by  the  state  upon  the  trial. 

Ajjinncd. 

Note. —  Where  a  statute  defining  an  offense  contains  an  excei;tit)n,  in  tlio 
enacting  clause  of  the  statute,  which  is  so  incorporated  witli  tho  laiigu:i^'o 
defining  the  offense  that  tlie  ingredients  of  the  oftonso  cannot  be  accuratily 
and  clearly  described  if  tho  exception  is  admitted,  the  rules  of  good  pli^ad- 
ing  require  that  an  indictment  founded  upon  the  statute  nmst  allege  or.()u.','li 
to  show  that  the  accused  is  not  within  the  exception;  but  if  tlie  languagoof 
the  section  defining  the  offense  is  so  entirely  separable  from  the  oxtPiition 
that  the  ingredients  coni;tituting  tlie  ofTonse  may  be  ac(!uratoly  and  clearly 
defined  without  any  referenc3  to  the  exception,  tlie  pleader  may  saloly  omit 
any  such  reference,  as  the  matter  contained  in  the  exception  is  matter  of 
defense  and  must  be  shown  by  the  accused.  United  States  v.  Cook,  17  Wal- 
lace, 173.  It  is  immaterial  whether  an  exception  or  proviso  bo  contained  in 
the  enacting  clause  or  section,  or  be  introduced  in  a  different  manner,  a.s  it 
Is  the  nature  of  the  exception  or  proviso,  and  not  its  lo(;aiion,  whldi  is 
material.  When,  therefore,  the  exception  or  proviso  is  so  introduced  as  to 
constitute  a  part  of  the  definition  or  description  of  the  offense,  it  must  bo 
negatived.    Tlie  Territory  v.  Scott,  2  Dak.,  813. 


STATE  V.  MAGRATH. 


279 


State  v.  Maokatd. 

(44  N.  J.,  227.) 

Indictment,  "tiiue  bill:"  Evidence — Parol  not  culmissible. 

1.  Indictment,  not  indorsed  true  bill. — An  indictment  will  not  he  quashed 

on  the  ground  of  its  not  being  indorsed  as  a  "  true  bill,"  or  signed  by  the 
foreman  of  the  grand  jury. 

2.  Evidence— Parol  not  admissible  to  snow  resolution  op  cosimou 

council. — Tlie  defendant  was  a  member  of  the  common  council  of  Cape 
May,  and  was  indicted,  under  the  statute,  for  furnishing  supplies  which 
had  been  paid  for  by  such  council ;  to  prove  such  payftient,  the  treasurer 
of  the  city  testified  that  he  made  such  payment,  and  that  the  council 
had,  by  resolution,  ratified  the  same.  Jleld,  that  such  proof  of  the  con- 
tents of  such  resolution  was  illegal. 

From  the  Capo  May  Oyer  and  Terminer.  Motion  for  a  no\r 
trial,  sent  to  this  court  for  its  advisory  opinion. 

W.  E.  Potter^  for  the  motion. 
J.  R.  Jloagland,  for  the  state. 

The  o]>inion  of  the  court  was  delivered  by 

Beasley,  Chief  Justice.  Before  the  oyer  and  terminer,  a 
motion  was  made  to  quash  the  indictment  in  this  case  for  tho 
reason  that  it  was  not  indorsed  with  the  sigiiuut:»'o  of  tho  fore- 
man of  the  grand  jury,  nor  marked  with  tho  customary  for- 
mula of  its  being  a  "  true  bill,"  and  it  was  strongly  pressed  on 
the  argument  before  this  court,  that  such  a  mode  of  authenti- 
cation was  indisi)cnsable  to  tho  legality  of  the  ])rocedure. 

According  to  the  ancient  English  methods,  it  may  bo  rea- 
sonably suj)poscd  that  the  form  of  authentication  in  ques- 
tion was  an  essential  part  of  criminal  practice.  In  that  sys- 
tem the  indorsement  by  the  foreman  was  tho  only  certi- 
lication  to  tho  court  of  what  the  action  of  the  grand  inquest 
had  been  in  any  given  case,  and  in  the  absence  of  such  certi- 
fication there  was  nothing  on  the  record,  or  in  any  part  of 
tho  conduct  of  matters,  to  indicate,  cither  distinctly  or  ob- 
scurely, whether  a  bill  in  a  particular  case  had  been  found  op 
not  found.  The  fact  that  a  bill  had  been  ])rosented  to  the 
court  in  open  session,  by  the  grand  jury,  afforded  no  intimar 
tion  whatever  touching  the  views  of  that  body  with  respect  to 


280 


AMERICAN  CRIMINAL  REPORTS. 


n 


it.  This  unavoidably  resulted  from  the  course  of  the  proco(>(l- 
ings,  which  were  conducted  in  this  wise:  Bills,  or  formal  accu- 
sations of  crime,  were  drawn  up  and  presented  to  the  grand 
jury,  who,  after  investigation,  if  they  thought  any  particular 
accusation  groundless,  indorsed  upon  it  the  word  iffnoramus,  or 
the  phrase  "  not  found,"  or  if  the  opposite  opinion  was  enter- 
tained, then  the  bill  was  indorsed  with  the  words  "  a  true  bill," 
and  such  bills,  some  being  thus  certified  to  have  been  found, 
and  others  to  have  been  ignored,  were,  in  a  promiscuous  body, 
handed  in  by  the  grand  jury  to  the  court.  It  is  manifest, 
therefore,  tlmt  in  such  a  state  of  affairs  the  court  had  notliiu"" 
to  guide  it  in  ascertaining  the  purpose  of  the  grand  inquest  in 
any  particular  instance  except  this  indorsement  upon  the  bill, 
and  it  is  not  surprising,  therefore,  to  find  the  court,  as  Avas  tlie 
case  in  Kiiiff  v.  Fovd,  Yelv.,  90,  saying  that  "  the  indorsoniont 
is  parcel  of  the  indictment,  and  the  perfection  of  it."  In  fact, 
however,  it  is  obvious  that  such  an  indorsement  was  no  part  of 
the  bill,  but  was  the  extrinsic  indicium  that  the  grand  Jury  had 
officially  decided  to  make  the  accusation  contained  in  the  in- 
dictment. The  indorsement  that  the  bill  was  a  "true  bill" 
was  the  formal  and  sufficient  certification  of  that  essential  fact, 
and  in  the  absence  of  such  a  certificate  there  was  absolutely 
nothing  before  the  court  to  show  such  essential  fact. 

But  although  this  undoul)tcdly  was  the  settled  course  of  the 
English  practice  in  this  respect,  and  although,  from  the  niituro 
of  such  practice,  the  omission  of  an  indorsement,  in  one  of  the 
usual  modes,  upon  an  indictment,  would  have  left  it  entirely 
uncertain  whether  such  bill  had  been  found  or  not  found,  I  do 
not  perceive  that  it  was  ever  decided  at  common  law  that  such 
method  of  certification  of  the  purpose  of  the  grand  jury  AViis 
the  only  admissible  method.  All  that  appears  to  have  boon 
decided  is  that  some  certificate  in  this  respect  was  necessary, 
and  we  also  know  that  the  one  above  described  tvas  the  ap- 
proved form  in  vogue.  No  judgment  has  declared  that  if  the 
finding  of  a  bill  by  the  grand  inquest  had  been  made  to  appear 
in  a  manner  equally  certain  with  that  which  arises  from  the 
usual  indorsed  certificate  of  the  fact,  that  such  an  authentica- 
tion would  have  been  insufficient  and  invalid.  The  object 
aimed  at  is,  that  the  court  should  be  informed,  with  the  requi- 
site certainty,  that  the  inquisitorial  body  has  found  the  accusa- 


STATE  V.  MAOKATH. 


281 


tion  true,  but  the  mode  of  giving  such  information  is  but  the 
form  of  tlie  transaction. 

IJut  in  tliis  state,  as  every  practitioner  is  aware,  the  mode  of 
proceeding  with  respect  to  the  particular  in  question  is  very 
dilFcrent  from  the  practice  above  described.  In  our  procedures, 
bills  are  not  drawn  up  beforehand  and  presented  for  adoption 
or  rejection  by  the  grand  jury,  but,  to  the  contrary,  they  are 
drawn  subsequently  to  the  investigation,  and  consequently 
there  arc  no  bills  in  this  course  of  law  which  are  marked  "  not 
found."  The  result  is,  that  all  the  bills  which  the  grand  jury 
bring  into  court  are  such  as  have  been  found  by  them,  and 
therefore  the  act  of  presenting  them  to  the  court  is  a  certifica- 
tion that  they  have  been  oilicially  found.  The  question  thus, 
then,  arises  whether  such  an  authentication  has  not  that  degree 
of  trustworthiness  that  it  ought  to  satisfy  all  legal  require- 
ments. I  confess  that  I  do  not  see  why  such  an  assurance  as 
tlie  grand  jury  makes  to  the  court  on  this  subject,  in  our  prac- 
tice, should  not  be  held  to  be  sufficient.  The  bills  presented 
are  in  court  openly  declared  by  the  grand  jury  to  be  the  bills 
which  they  have  found,  and  such  bills  aio  at  the  same  time 
htuuled  to  the  officer  of  the  court  to  be  by  him  filed.  Such  a 
proceeding,  the  court  and  the  grand  jury  being  thus  in  contact, 
would  seem  to  exclude  all  reasonable  api)i"ehension  of  the  in- 
tervention of  error  or  imi)OPition.  It  was  in  this  mode  that  the 
bill  now  before  the  court  was  brought  into  the  oyer  and  ter- 
miner, and  it  seems  to  me  that  it  is  putting  a  sti'ain  upon  com- 
mon sense  to  infer  that  there  is  the  least  doubt  that  it  was 
duly  found  by  the  grand  inquest.  This  being  so*,  I  am  unwill- 
ing to  hold  that  the  omission  of  a  form  will  vitiate  the  pro- 
ceeding. In  liool'toooiVs  Case,  13  How.  St.  Tr.,  131),  Chief 
Justice  Holt  placed  the  subject  in  a  very  reasonable  light.  He 
Bays :  "  An  indictment  is  not  an  indictment  till  it  be  foimd ;  it 
is  only  a  Avriting  prepared  for  the  ease  of  the  jury  and  for  ex- 
pedition; it  is  nothing  till  it  is  found,  for  the  jury  make  it  an 
indictment  by  finding  it;  they  may  alter  what  they  please,  or 
refuse  it  absolutely.  And  if  the  jury,  upon  examining  the 
witnesses,  would  only  present  a  matter  of  fact,  with  time  and 
place,  the  court  might  cause  it  to  bo  drawn  up  into  form,  with- 
out carrying  it  to  the  jury.  Again,  tli(M'e  needs  no  h'tlht  vera, 
for  that  is  only  the  jury's  owning  that  which  the  court  has 


(  ■  ■ 

ii  ■ 


282 


AMERICAN  CRIMINAL  REPORTS. 


prepared  for  them."  The  grand  jury  in  the  present  instance 
having  owned  the  bill  as  their  linding,  I  think  it  was  by  that 
means  sufficiently  identified  and  autlienticated. 

Tlie  American  authorities  are  in  conllict  on  this  subject;  but 
I  agree  with  Mr.  Bishop,  as  lie  expressed  himself  in  his  book 
on  Criminal  Procedure,  that  the  foregoing  doctrine  adopted  by 
me  is  that  which  is  "  best  sustained  by  reason,  and  as  Avcll  sus- 
tained by  authority  as  any  other."     1  Crim.  Pro.,  §  141. 

This  first  ground  of  objection  cannot  bo  sustained. 

Tlie  remaining  exception  taicen  to  the  proceedings  at  the 
oyer  relates  to  the  admission  of  certain  testimony. 

The  indictment  charged  that  the  defendant,  being  a  member 
of  the  city  council  of  Cape  May,  unlawfully  did  furnisii  sup- 
plies to  an;l  for  Ihe  city  of  Cape  May,  the  expense  of  which 
supplies  was  paid  by  the  city  council,  of  which  the  said  Chris- 
topher T.  Magrath  was  a  member. 

The  gravamen  of  the  olfense  Avas  the  payment  of  these 
moneys  by  the  body  to  which  the  defendant  belonged.  It  v;ng 
therefore  incumbent  on  the  pi'osccution  to  show  not  only  pay- 
ment, but  payment  by  this  city  council. 

The  testimony  on  the  part  of  the  state  on  this  subject  was 
this:  The  treasurer  testified  that  he  made  the  ])ayincnt  to  the 
defendant  lor  those  supplies;  that  he  made  it  irregularly,  with- 
out the  order  of  the  common  council,  and,  in  order  to  show  tlio 
assent  of  the  common  council  to  such  act,  ho  proceeded  to  state 
that  the  council,  subscqncntl}^  by  a  formal  rt^solution  in  their 
minutes,  ratilied  the  payment.  The  defense  insisted  tliat  if 
such  resolution  was  passed,  the  proper  proof  was  the  minutes 
of  the  common  council,  and  tliat  parol  evidence  was  not  ad- 
missible, and  could  not  supply  its  place.  The  evidence  objected 
to  was  admitted,  and  I  think  that  in  this  particular  an  eri-or 
in  law  is  exhibited.  The  action  of  the  common  council  was  a 
necessary  part  of  the  case  of  the  state,  and  as  there  was  written 
and  formal  evidence  of  such  action,  secondary  evidence,  under 
the  circumstances,  should  not  have  been  introduced. 

The  rule  for  a  now  trial  must  bo  made  absolute. 


EX  PARTE  WILSON. 


2S3 


Ex  Parte  Wilson. 

(114  U.  S.,  417.) 

Lnkamous  crime:  Ilahcas  corpus— Information— Indictment — Sentence. 

1.  Hadhas  corpus  from   United  States  suprems  court,— It  is  well 

Bcttlod  tlijxt  the  United  States  supremo  court  cannot  discharge  a  person 
imprisoned  under  sentence  of  a  circuit  or  district  court  in  a  criminal 
case,  unless  the  sentence  exceeds  the  jurisdiction  of  that  coui't,  or  thero 
is  no  authority  to  liold  liiin  under  the  sentence. 

2.  Information  or  indictment.— The  provision  of  the  Revised  Statutes  of 

the  United  States  authorizing  certain  offenses  to  be  prosecuted  by  in- 
dictment or  by  information  does  not  prechide  tlie  prosecution,  by  infor- 
mation, of  other  offenses  of  such  a  grade  as  may  be  so  prosecuted 
consistently  witli  the  constitution  and  hiws  of  the  United  States. 
8.  Record  of  conviction. — Tlie  omission  of  the  record  to  state  that  thero 
was  no  suitable  penitentiary  within  the  state  is  no  ground  for  discharg- 
ing the  prisoner  on  JiabeuN  cor2nis. 

4.  Same. —  A  certified  copy  of  tlie  record  of  conviction,  if  valid  upon  it3 

face,  is  sufRcient  to  authorize  the  keeper  of  the  prison  to  hold  the  pris- 
oner witliout  any  warrant  or  viittimns. 

5.  Infamous  crime. — A  crime  punishable  by  imprisonment  for  a  term  of 

yeara  at  liard  labor  is  an  infamous  crime  within  the  meaning  of  the  fiith 
amcnJment  to  the  constitution,  and  a  person  sentenced  to  suuli  impris- 
omnent  without  having  been  presented  or  indicted  by  a  grand  jui'y  is 
entitled  to  bo  discliai'ged  on  habeas  corpus. 


II r.  Alford  /iu.well,  for  petitioner. 

Mr.  Assistant  Attorncij-General  Maury,  contra. 

Jfr.  Justice  Gkav,  after  stating  the  facts,  delivered  the  opin- 
ion of  the  court. 

It  is  xcgW  settled  by  a  series  of  decisions  tliat  this  court,  hav- 
int^  no  jurisdiction  of  criminal  cases  by  writ  of  error  or  appeal, 
Ciinnot  discharge  on  haheas  corpus  a  person  imprisoned  under 
tiic  sentence  of  a  circuit  or  district  court  in  a  criminal  case, 
unless  the  sentence  exceeds  tlie  jurisdiction  of  that  court,  or 
tliei'c  is  no  autliority  to  hold  iiim  under  tlie  sentence.  lL,e  parte 
Wittkinn,  ?>  Pet.,  103,  and  7  Pet.,  5GS;  Ec  parte  Lange,  18 
Wull.,  lO,*];  Ec  jmrte  Parks,  93  U.  S.,  IS;  Ev  parte  Slehold, 
10ft  IJ.  S.,  371;  Ev  imrtc  Gnrth,  100  U.  S.,  371;  J5:«  parte 
CarU,  100  U.  S.,  521;  Ee  jyarte  Ynrhrongh,  110  U.  S.,  051; 
Ex  parte  Crancli,  112  U.  S.,  178;  Ec  parte  Bigelow,  Hi,  U. 
S.,  328. 


in' 


284 


AMERICAN  CRIMINAL  REPORTS. 


None  of  the  grounds  on  wliich  the  petitioner  relies,  except  the 
first,  require  extended  discussion. 

The  provision  of  Eevised  Statutes,  section  1022,  dei'ived  from 
the  Civil  Rights  Act  of  May  30,  1870,  chapter  114,  section  8, 
authorizing  certain  oifenses  to  be  prosecuted  either  by  indict- 
ment or  by  information,  does  not  preclude  the  prosecution  by 
information  of  other  offenses  of  such  a  grade  as  may  be  so 
prosecuted  consistently  with  the  constitution  and  laws  of  the 
United  States. 

The  objection  of  variance  between  the  conviction  and  the 
sentence  is  not  sustained  by  the  record.  The  first  count  is  for 
unlawfully  having  in  possession,  with  intent  to  sell,  an  obliga- 
tion engraved  and  ])rinted  after  the  similitude  of  securities 
issued  under  autiiority  of  the  United  States,  and  the  copy 
annexed  and  referred  to  in  that  count  is  of  such  an  obligation. 
Both  the  verdict  and  the  sentence  are  general,  and  therefore 
valid  if  one  count  is  good.  Un'di'd  States  v.  Snyder,  112  U.  S., 
216.  The  misrecital  of  the  vei-diet,  in  the  statement  of  the 
intermediate  inquiry,  whether  the  ])risoner  had  aught  to  say 
wliy  sentence  should  not  be  pronounced  against  him,  is  no 
more  than  an  irregularity  or  error,  not  affect ing  the  jurisdiction 
of  the  court. 

The  omission  of  the  record  to  state,  as  in  Kc  parte  Knrsten- 
dick,  03  U.  S.,  390,  that  there  was  no  suitable  i)enitentiary 
within  the  state,  and  that  tlie  attorney-general  had  designated 
the  house  of  correction  at  Detroit  as  a  suitable  place  of  im- 
prisonment outside  the  state,  is  even  less  material. 

The  certified  copy  of  the  record  of  the  sentence  to  impris- 
onment in  the  Detroit  house  of  correction,  if  valid  upon  its 
face,  is  sufficient  to  authorize  the  keeper  to  hold  the  prisoner 
without  any  warrant  or  mltt'uims.  People  v.  JVevens,  1  Hill 
(N.  Y.),  154. 

But  if  the  crime  of  which  the  petitioner  was  accused  was  an 
infamous  crime,  within  the  meaning  of  the  fifth  amendment 
of  the  constitution,  no  court  of  the  United  States  had  juris- 
diction to  try  or  punish  him,  except  upon  presentment  or  in- 
dictment by  a  grand  jury. 

AVe  are  therefore  necessarily  brought  to  the  determination 
of  the  question  whether  the  crime  of  having  in  possession, 
with  intent  to  sell,  an  obligation  engraved  and  printed  jittcr 


EX  PARTE  WILSON. 


285 


the  similitude  of  a  public  security  of  the  ITuited  &ta':es,  pun- 
ishable by  line  of  not  more  than  $.'>,()( )0,  or  by  imjjrisonment 
iit  hiirl  labor  not  more  than  fiftoon  years,  or  by  both,  is  an  in- 
famous crime  within  the  meanin<j-  of  this  amendment  of  the 
constitution.  ' 

The  first  provision  of  this  amendment,  which  is  all  that  re- 
lates to  this  subject,  is  in  these  words:  " No  person  shall  be 
held  to  answer  for  a  capital  or  otherwise  infamous  crime,  un- 
less on  a  presentm(;nt  or  indictment  of  a  grand  jury,  except 
in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia, 
when  in  actual  service  in  time  of  war  or  public  danger." 

The  scope  and  effect  of  this,  as  of  many  other  provisions  of 
the  constitution,  are  best  ascertained  by  bearing  in  mind  what 
the  law  was  before. 

Mr.  William  Eden  (afterward  Lord  Auckland),  in  his  Princi- 
ples of  Peiuil  Law,  which  passed  through  three  editions  in 
England  and  at  least  one  in  Ireland,  within  six  years  before 
the  declaration  of  independence,  observed:  "There  are  two 
kinds  of  infamy;  the  one  founded  in  the  opinions  of  the  peo- 
ple respecting  the  mode  of  punishment,  the  other  in  the  con- 
struction of  law  respecting  the  future  credibilit}'^  of  the 
delincpient."    Eden's  Principles  of  Penal  Law,  ch.  7,  §  5. 

At  that  time  it  was  already  established  law  that  the  infamy 
which  discpialilied  a  convict  to  be  a  witness  depended  upon  the 
character  of  his  crime,  and  not  upon  the  nature  of  his  punish- 
ment. Pendoch  v.  McKinder,  Willes,  005;  Glib.  Ev.,  143; 
2  Hawk.,  ch.  4(i,  §  102;  TI>c  King  v.  Pnddle,  1  Leach  (4th  ed.), 
442.  The  disqualification  to  testify  appears  to  have  been  lim- 
ited to  those  adjudged  guilty  of  treason,  felony,  forgery,  and 
crimes  injuriously  affecting,  by  falsehood  and  fraud,  the  admin- 
istration of  justice,  such  as  ])erjury,  subornation  of  perjury, 
su[)j)ression  of  testimony  by  bi'ibery,  conspiring  to  accuse  one 
of  crime  or  to  procure  the  absence  of  a  witness;  and  not  to 
have  been  extended  to  cases  of  private  cheats,  such  as  the 
obtaining  of  goods  by  false  pretenses  or  the  uttering  of  counter- 
feit coin  or  forged  securities.  1  Greenl.  Ev.,  §  37!};  Utley  v. 
Mctrkl;  n  Mot,  302;  Fttx  v.  Ohio,  5  How.,  410,  433,  434. 

But  the  object  and  the  very  terms  of  the  provision  in  the 
tit'th  amendment  show  that  incompetency  to  be  a  witness  is 
Mot  the  only  test  of  its  application. 


5i8(; 


AMEIilCAN  CRIMINAL  UEPOUTS. 


) 


"Wliotlior  ii  convict  shall  ho  permitted  to  testify  is  not  f>;ov. 
erned  liy  a  roL;iird  to  his  ri<?hts  or  to  his  protection,  hut  hy  tlio 
considoratio:i  whether  the  law  dconia  his  testimony  worthy  of 
credit  upon  the  trial  of  the  rig-lits  of  others.  IJnt  whctlier  a 
man  shall  ho  put  upon  his  trial  for  crime  witlioiit  a  prercntniont 
or  indictment  by  a  grand  jury  of  his  fellow-cili/cns  depends 
upon  the  consequences  to  himself  if  he  shall  I)0  found  /guilty. 

By  the  law  of  En^rland  informations  by  the  attorney-gcMicial, 
without  the  intervention  of  a  grand  jury,  were  not  allowed  Cor 
capital  crimes,  nor  for  any  felony,  l)y  which  was  understood 
any  olfense  whicli  at  common  law  occasioned  a  total  forfeitiiro 
of  the  offender's  lands  or  goods,  or  both.  4  131.  Com.,  94,  0.5, 
310.  The  question  Avhether  the  prosecution  nuist  ho  by  indict- 
ment, or  might  ho  hy  information,  thus  depemled  upon  tlio 
consequences  to  the  convict  himself.  The  fifth  amendment, 
declaring  in  Avhat  cases  a  grand  jury  should  bo  necessary,  and 
in  effect  affirming  the  rule  of  the  common  law  upon  the  saino 
subject,  substituting  only,  for  capital  crimes  or  felonies,  "a 
capital  or  otherwise  infamous  crime,"  manifestly  had  in  view 
that  rule  of  the  common  law  rather  than  tho  rule  on  the  very 
different  question  of  tho  competency  of  witnesses.  The  lond- 
ing  word  "capital"  describing  tho  crime  by  its  punishmout 
only,  tho  associated  words  "or  otherwise  infamous  crime" 
must,  by  an  elementary  rule  of  construction,  include  crimes 
subject  to  any  infamous  punishment,  even  if  they  should  be 
held  to  include  also  crimes  infamous  in  their  nature,  mdepcnd- 
ently  of  tho  punishment  affixed  to  them. 

A  reference  to  the  history  of  tho  proposal  and  adoption  of 
this  provision  of  the  constitution  conlirms  this  conclusion.  It 
had  its  origin  in  one  of  tho  amendments,  in  the  nature  of  tlic 
bill  of  rights,  recommended  by  the  convention  by  which  the 
state  of  Massachusetts  in  1788  ratified  the  original  constitution, 
and  as  so  recomxraended  was  in  this  form :  "  No  jwrson  shall  bo 
tried  for  any  crime,  by  which  he  may  incur  an  infamous  pun- 
ishment, or  loss  of  life,  until  he  bo  first  indicted  by  a  grand 
jury,  except  in  such  cases  as  may  arise  in  tho  government  and 
regulation  of  the  land  and  naval  forces."  Journal  ]\Iassiic]ui- 
setts  Convention  1788  (ed.  1850),  80,  8^,  bV;  2  Elliot's  Debates, 
177.  As  introduced  by  Mv.  Madison  in  1789  at  the  first  session 
of  the  house  of  representatives  of  the  United  States,  it  stood 


KX    PARTE  WILSON. 


287 


thus:  "In  all  crimos  ]ninis]inl)le  with  loss  of  life  or  member, 
nreseiitment  or  indict  incut  by  a  jij^rand  jury  shall  be  an  essential 
preliminary."  iiein;^  referred  to  a  committee,  of  which  Mr. 
Madison  was  a  member,  it  Avas  rejjorted  back  in  substantially 
tlie  same  form  in  which  it  was  afterwards  approved  by  congress, 
and  ratified  by  the  states.     1  Annals  of  Congress,  4135,  7(50. 

Mr.  Dane,  one  of  the  most  learned  lawyers  of  his  time,  and 
who  as  a  member  of  the  continental  congress  took  a  principal 
part  in  framing  the  ordinance  of  1787  for  the  government  of  the 
northwest  territory,  assumes  it  as  unquestionable  that,  by  virtue 
of  the  amendment  of  the  constitution,  informations  "  cannot  bo 
used  where  eitlier  capital  or  infamous  punishment  is  inflicted." 
7  Dane,  Ab.,  280.  Judge  Cooley  has  expressed  a  similar  opin- 
ion.   Cooley,  Principles  of  Constitutiontil  Law,  291. 

The  only  mention  of  information  in  the  first  crimes  act  of 
the  United  States  is  in  the  clause  providing  that  no  person 
"  shall  be  proseouted,  tried  or  punished  for  an  offense  not  cap- 
ital, nor  for  any  ilne  or  forfeiture  under  any  penal  statute, 
unless  the  indictment  or  information  for  the  same  shall  be 
found  or  instituted  within  two  years  from  the  time  of  commit- 
ting the  offense,  or  incurring  the  line  or  forfeiture,"  Act  of 
April  30,  1790,  cli.  9,  §  32;  1  Stat.,  119.  For  very  many  years 
afterwards,  informations  were  principally,  if  not  exclusively, 
used  for  the  recoverv  of  tines  and  forfeitures,  such  as  those 
hnposed  by  the  revenue  and  embargo  laws.  Acts  of  July  31, 
1789,  ch.  5,  §  27  (1  Stat.,  43);  March  20,  1804,  ch.  40,  §  3,  and 
March  1,  1809,  ch.  24,  §  18  (2  Stat.,  290,  532);  United  States  v. 
Hill,  I  Brock.,  l.'iO,  1.58;  United  States  v.  Jlann,  1  Gallison,  3, 
177 ;  Walsh  v.  United  States,  3  AVoodb.  &  Min.,  341.  Mr.  Justice 
Story,  writing  in  1833,  said:  '"This  process  is  rarely  recurred 
to  in  America,  and  it  has  never  j^et  been  formally  put  into 
operation  by  any  positive  authority  of  congress,  under  the 
national  government,  in  mere  cases  of  misdemeanor;  though 
common  enough  in  civil  prosecutions  for  penalties  and  forfeit- 
ure."   Story  on  the  Constitution,  §  1780. 

The  informations  which  passed  witiiout  objection  in  United 
States  V.  Ishatn,  17  Wall.,  490,  and  United  States  v.  Buszo,  18 
Widl.,  125,  were  for  violations  of  the  stamp  laws,  punishable  by 
tine  onlv.  And  the  offense  which  Mr.  Justice  Field  and  Judcre 
Sawyer  held  in  United  States  v.  Waller,  1  Sawyer,  701,  might 


288 


AMERICAN  CRIMINAL  REPORTS. 


be  prosecuted  by  information,  is  there  described  as  "  an  offense 
not  capital  or  otherwise  infamous,"  and,  as  appears  by  the  state- 
ment of  Jud<je  Deady  in  United  States  v.  BlitcJc,  4  Sawyer,  211, 
213,  was  the  introduction  of  distilled  spirits  into  Alaska,  pun- 
ishable only  by  fine  of  not  more  than  $500,  cr  imprisonment 
not  more  than  six  months.  Act  of  July  27,  18G8,  ch.  273,  §  4 
(15  Stat,  241). 

Within  the  last  fifteen  years,  prosecutions  by  information 
have  i^reatly  increased,  and  the  general  current  of  opinion  in  the 
circuit  and  district  courts  has  been  towards  sustaining  them  for 
any  crime,  a  conviction  of  which  would  not,  at  common  law,  have 
disqualified  the  convict  to  be  a  Avitness.  Un  Ited  States  v.  S/iej)ard, 
1  Abbott  (U.  S.),  431;  United  States  v.  Maxwell,  3  Dillon,  275; 
United  States  v.  Mock,  4  Sawyer,  211 ;  United  States  v.  J/itlep, 
3  Hughes,  553 ;  Un  ited  States  v.  Baiigh,  4  Hughes,  501 ;  United 
States  V.  Yates,  0  Fed.  Rep.,  801;  United  States  v.  Field,  21 
Blatcliford,  330;  In  re  Wilson,  18  Fed.  Rep.,  33. 

But,  for  the  reasons  above  stated,  having  regard  to  the  ob- 
ject and  the  terms  of  the  fii'st  provision  of  the  fifth  amendment, 
as  well  as  to  tlie  history  of  its  proposal  and  adoption,  and  to  tlie 
early  understanding  and  ])ractice  imder  it,  tliis  court  is  of  ojjin- 
ion  that  the  competency  of  the  defendant,  if  convicted,  to  be  a 
witness  in  another  case  is  not  the  true  t(  st ;  and  tluit  no  person 
can  be  hold  to  answer,  without  presentment  or  indictment  hy 
a  grand  jury,  for  any  crime  for  which  an  infamous  punislnnent 
may  be  impos'^d  by  the  court. 

The  question  is  whether  the  crime  is  one  for  which  tlio  stat- 
utes authorize  the  court  to  award  an  infamous  punislmient,  not 
whether  the  punishment  ultimately  awarded  is  an  infamous 
one.  "When  the  accused  is  in*langerof  being  subjected  to  an 
infamous  punishment,  if  convicted,  he  has  the  riglit  to  insist 
tliat  he  sliall  not  be  put  upon  his  trial,  excei)t  on  the  accusation 
of  a  grand  jury. 

Nor  can  we  accede  to  tlic  proposition  which  has  been  some- 
times maintained,  that  no  crime  is  infamous,  within  the  mean- 
injj  of  the  fifth  amcncbnent,  that  lias  not  been  so  declared  hv 
congress.  See  Unite<l  States  v.  Tly;*//,  3  McCraiy,  2(10,  and  11 
Fed.  liep.,  57;  United  States  )\  Petit,  U  Fed.  Rep.,  5S;  United 
States  V.  Cross,  1  MacArtliur,  14l>.  The  purpose  of  the  amend- 
ment was  to  limit  tlie  powers  of  the  legislatun;,  as  well  as  of  tlie 


21, 


EX  PARTE  WILSON. 


289 


prosecuting  officers  of  the  United  States.  "We  are  not,  indeed, 
disposed  to  deny  that  a  crime,  to  the  conviction  and  punish- 
ment of  Avliich  congress  has  superadded  a  disqualification  to 
hold  office,  is  thereby  made  infamous.  United  States  v.  Wad- 
dell,  112  U.  S.,  70,  82.  But  the  constitution  protecting  every 
one  from  being  prosecuted,  without  the  intervention  of  a  grand 
jury,  for  any  crime  which  is  subject  by  law  to  an  infamous 
punishment,  no  declaration  of  congress  is  needed  to  secure,  or 
competent  to  defeat,  the  constitutional  safeguard.  The  re- 
maining question  to  be  considered  is,  whether  imprisonment  at 
hard  labor  for  a  term  of  years  is  an  infamous  punishment. 

Infamous  punishments  cannot  be  limited  to  those  punish- 
ments Avliich  are  cruel  or  unusual ;  because,  by  the  seventh 
amendment  of  the  constitution,  "cruel  and  unusual  punish- 
ments "  are  wholly  forbidden,  and  cannot,  therefore,  be  law- 
fully inflicted  even  in  causes  of  convictions  upon  indictments 
duly  presented  by  a  grand  jury. 

By  the  lirst  crimes  act  of  the  United  States,  forgery  of  pub- 
lic securities,  or  knowingh'^  uttering  forged  public  securities 
witli  intent  to  defraud,  as  well  as  treason,  murder,  piracy,  mu- 
tiny, robbery,  or  rescue  of  a  person  convicted  of  a  capital 
crime,  wo s  punishable  with  death;  most  other  offenses  were 
punished  by  fine  and  imprisonment;  Avhipping  Avas  part  of  the 
punishment  of  stealing  or  falsifying  records,  fraudulently  ac- 
knowledging I)ail,  larceny  of  goods,  or  receiving  stolen  goods; 
disqualification  to  hold  office  was  part  of  the  punishment  of 
briber}"^;  and  those  convicted  of  perjury  or  subornation  of  per- 
jury, besides  being  lined  and  imprisoned,  were  to  stand  in  the 
pillory  for  one  hour,  and  rendered  incapable  of  testifying  in 
any  court  of  the  United  States.  Act  of  April  80,  1790,  ch.  9 
(1  Stat.,  112-117);  Mr.  Justice  Wilson's  Charge  to  the  Grand 
Jury  in  1791,  3  Wilson's  Works,  380,  381.  By  that  act  no 
provision  was  made  for  imprisonment  at  hard  labor.  But  the 
punishment  of  both  fine  and  imprisonment  at  hard  labor  was 
prescribed  by  later  statutes,  as,  for  instance,  by  the  act  of  April 
21, 1800,  ch.  49,  for  counterfeiting  coin  or  uttering  or  import- 
ing counterfeit  coin;  and  by  the  act  of  March  3,  1825,  ch.  05, 
for  perjury,  subornation  of  perjury,  forgery  and  counterfeit- 
ing, uttering  forged  securities  or  counterfeit  money,  and  other 
grave  criiies.  2  Stat.,  404;  4  Stat.,  115.  Since  the  punish- 
VoL.  IV— 19 


290 


AMERICAN  CRIMINAL  REPORTS. 


ments  of  whipping  and  of  standing  in  the  pillory  ^yGro  abolished 
by  the  act  of  February  28,  1839,  ch.  36,  §  5  (5  Stat.,  322),  im- 
prisonment at  hard  labor  has  been  substituted  for  nearly  all 
other  ignominious  punishments  not  capital.  And  by  the  act  of 
March  3,  1825,  ch.  65,  §  15,  re-enacted  in  E.  S.,  §  55i2,  any 
sentonce  of  imprisonment  at  hard  labor  may  be  ordered  to  be 
executed  in  a  state  prison  or  penitentiary.     4  Stat.,  118. 

AVhat  punishment  shall  be  considered  as  infamous  may  be 
affected  by  the  changes  of  public  opinion  from  one  age  to  an- 
other. In  former  times,  being  put  in  the  stocks  was  not  con- 
sidered as  necessai'ily  infamous.  And  by  the  first  judiciary 
act  of  the  United  States,  whipping  was  classed  witli  moderate 
fines  and  short  terms  of  imprisonment  in  limiting  the  criminal 
jurisdiction  of  the  district  courts  to  cases  "  when  no  other 
punishment  than  whipping,  not  exceeding  thirty  stripes,  a  fine 
not  exceeding  §100,  or  a  term  of  imprisonment  not  excecdinji- 
six  months,  is  to  be  inflicted."  Act  of  September  21,  ITS',),  ch. 
20,  §  9  (1  Stat.,  77).  ]>ut  at  the  present  day  either  stocks  or 
whipping  might  be  thought  an  infamous  punishment. 

For  more  than  a  century,  imprisonment  at  hard  labor  in  the 
state  prison  or  penitentiary,  or  other  similar  institution,  has 
boen  considered  an  infamous  punishment  in  Eiigkuid  and 
America. 

Among  the  punishments  "that  consist  principally  in  tlioir 
ignominy,"  Sir  William  Blackstone  classes  "  hard  lal)(>i',  in  tlie 
house  of  correction  or  otherwise,"  as  well  as  whi[)ping,  tlie 
pillory  or  the  stocks,  -t  iJl.  (.'om.,  377.  And  Mv.  Dane,  wliik* 
treating  it  as  doubtful  whether  confinement  in  tlie  stoclcs  or  in 
the  house  of  correction  is  infamous,  says:  '* Punislnncnts, 
clearly  infamous,  are  death,  gallows,  pillory,  brandiiig,  \\liii)- 
ping,  confinement  to  hard  labor  and  cropping."  2  Dane,  Ah. 
569,  570. 

The  same  view  has  been  forcibly  expressed  by  Cliief  Justice 
Sliaw.  Speaking  of  imprisonment  in  the  state  prison,  which, 
by  the  statutes  of  Massachusetts,  Avas  required  to  l)o  at  hard 
labor,  he  said:  "Whether  avo  consider  the  words  'infamous 
punishment '  in  their  popular  meaning,  or  as  they  are  under- 
stood by  the  constitution  and  laws,  a  sentence  to  the  state 
prison,  for  any  term  of  time,  must  be  considered  as  falling 
within  them.    The  convict  is  placed  in  a  public  place  of  punish- 


EX  PARTE  WILSON. 


291 


ment,  common  to  the  whole  state,  subject  to  solitary  imprison- 
ment, to  have  his  hair  cropped,  to  be  clothed  in  conspicuous 
prison  dress,  subjected  to  hard  labor  without  pay,  to  hard  fare, 
coarse  and  meagre  food,  and  to  severe  discipline.  Some  of 
these  a  convict  in  the  house  of  correction  is  subject  to;  but  the 
house  of  correction,  under  that  and  the  various  names  of  work- 
house and  bridewell,  has  not  the  same  character  of  infamy  at- 
tached to  it.  Besides,  the  state  prison,  for  any  term  of  time. 
is  now  by  law  substituted  for  all  the  ignominious  punishments 
formerly  in  use;  and,  unless  this  is  infamous,  then  there  is  now 
no  infamous  punishment  other  than  capital."  Jones  v.  Rohhhfi, 
8  Gray,  32!),  349.  In  the  same  case  Mr.  Justice  Merrick,  while 
dissenting  from  the  rest  of  the  court  upon  the  question  whether, 
under  the  words  "  the  law  of  the  land  "  in  the  constitution  of 
i^Iussachusetts,  an  indictment  by  a  grand  jury  was  essential  to 
a  prosecution  for  a  crime  punishable  by  imprisonment  in  the 
state  prison,  and  talcing  a  position  upon  that  question  more 
accordant  with  the  recent  judgment  of  this  court  in  Jhiriado 
v.  C<i///oniki,  110  IT.  S.,  .510,  yet  concurred  with  the  other 
ju(1l!,cs  in  holding  that  such  imprisonment  at  hard  labor  was  an 
infamous  punishment.     8  (xray,  370,  372. 

Imprisonment  at  hard  labor,  compulsory  and  unpaid,  is,  in 
the  strongest  sense  of  the  words,  "involuntary  servitude  for 
crime,"  spoken  of  in  the  provision  of  the  ordinance  of  17S7, 
and  of  the  thirteenth  amendment  of  the  constitution,  by  which 
all  other  slavery  was  abolished. 

Deciding  nothing  beyond  what  is  required  by  the  facts  of 
the  case  before  us,  our  judgment  is  that  a  crime  punishable  by 
imprisonment  for  a  tenn  of  years  at  hard  labor  is  an  infamous 
crime,  within  the  meaning  of  the  fifth  amendment  of  the  con- 
stitution; and  that  the  district  court  in  holding  the  petitioner 
to  answer  for  such  a  crime,  and  sentencing  him  to  such  impris- 
onment, without  indictment  or  presentment  by  a  grand  jury, 
exceeded  its  jurisdiction,  and  he  is  therefore  entitled  to  be 


discharged. 


Writ  of  habeas  corpus  to  issue. 


Note.— In  Gihhn  and  Stanton  v.  State,  45  N.  J.,  379,  the  court  held  that 
a  ju(l,i;inent  that  the  defendant  "  be  confined  in  the  state  prison  for  the  term 
of  si.\  montlis,"  etc.,  without  stating  that  he  bo  put  to  hard  labor,  was  suf- 
ficient, as  the  xienal  conaequence  would  follow  the  judgment.  "  Hard  labor," 


^^ 


292 


ASIERICAN  CRIMINAL  REPORTS. 


says  the  court,  "is  a  component  part  of  confinement  in  the  state  prison, 
and,  therefore,  when  the  sentenoo  is  to  subjeit  tlio  prisoner  to  such  confine- 
ment, it  necessarily  follows  that  he  is  thereby  condemned  to  hard  labor." 
We  are  inclined  to  think  that  it  is  the  character  of  the  punishment,  rather 
than  its  severity,  wliich  renders  a  crime  infamous. 


TViLLiAMs  V.  The  State. 

(13  Tex.  Ct.  App.,  226.) 

Information:  Time. 

An  information  is  fatally  defective  which  omits  to  allege  that  the  offense 
was  committed  anterior  to  the  day  of  the  filing  thereof,  when  the  stat- 
ute requires  that  the  time  of  the  commission  of  the  offense  should  bo 
so  stated. 


Appeal  from  the  County  Court  of  McLennan, 
the  Hon.  G.  E.  Gerald,  County  Judge. 


Tried  before 


Jennings  c6  Baker,  for  the  appellant. 

II.  Chilton,  assistant  attorney-general,  for  the  state. 

WiLLsoN,  J.  In  this  case  the  information  and  the  complaint 
both  charge  that  the  offense  was  committed  on  the  8th  (hiy  of 
June,  1881,  and  botli  are  fdcd  and  i)resontcd  in  court  on  the 
8th  day  of  June,  1881 ;  and  tliere  is  no  allegation  that  tlic 
offense  was  committed  anterior  to  the  presentment  of  the  in- 
formation. 

Repeated  decisions,  as  well  as  the  statute,  show  this  infor- 
mation to  be  fatally  defective  because  of  the  omission  to  allege 
that  the  offense  was  committed  anterior  to  the  filing  of  the  in- 
formation. Code  Crim.  Proc,  art.  430;  Joel  v.  State,  28  Tex., 
042 ;  Nelson  v.  State,  1  Tex.  Ct.  App.,  r>:>C^.  The  judgment  of 
conviction  is  reversed,  and  the  information  is  dismissed. 

Itcversed  and  dismissed. 

Note. —  A  complaint  charging  an  offense  as  committed  after  the  date  of 
the  complaint  will  bo  quashed,  on  objection  taken  after  appeal,  notwith- 
standing tlio  statute  which  provides  that  "  any  objection  to  a  complaint,  in- 
dictment or  other  criminal  process,  for  any  formal  defect  apparent  on  tlie  face 
thereof,  shall  be  taken  before  judgment,"  etc.   Com.  v,  Doyle,  110  JIass.,  103. 

When  by  clerical  eiTor  in  drawing  the  indictment  the  term  of  court  at 
which  the  indictment  was  found  was  made  to  appear  ten  montlis  prior  to 


TRASK  V.  THE  PEOPLE. 


293 


the  (late  of  the  commission  of  the  offense,  it  was  held  that  the  error  was 
not  a  matter  of  form,  but  of  substance,  and  that  the  defect  could  not  be 
cured  by  amendment.     The  State  v.  Davidson,  38  Tex.,  325. 

A  day  certain  within  the  time  limited  by  law  for  the  recovery  of  a  pen- 
alty, and  prior  to  the  filing  of  the  information,  must  be  stated.  State  v. 
Ingalls,  59  N.  H.,  88. 


Tkask  v.  The  People. 

(104  m.,  5G9.) 

iNSTRUCTioy:  Based  on  evidence,  error  to  refvse — Conspiracy. 

IssTUUCTiON  PRESENTING  A  PAUTY's  THKORY. —  On  the  trial  of  a  party  for 
conspiracy,  when  the  evidence  upon  the  material  jwints  in  the  case  is 
conflicting,  an  instruction  on  the  part  of  the  accused,  which  f.airly  pre- 
sents the  law  of  the  case  on  the  theory  contended  for  by  him,  ought 
not  to  be  refused,  having  a  basis  in  the  evidence  on  which  to  rest. 

"Writ  of  Error  to  the  Criminal  Court  of  Cook  County ;  tlie 
Hon.  Joseph  E.  Gary,  Judge,  presiding. 

Jfr.  K  F.  Rnnyaii,  for  the  phiintiff  in  error. 
Mr.  Luther  Lajliti  Jfiils,  state's  attorney,  and  Jfr.  Georcje  C. 
Ingham,  assistant  state's  attorney,  for  the  people. 

Mr.  Justice  Sciiolfield  delivered  the  opinion  of  tlie  court. 

The  plaintiff  in  error  Avas  indicted,  together  with  John  llorr, 
"William  Turner,  Micnael  McDonough  and  II.  M.  Cook,  for 
conspiracy.  The  indictment  contains  two  counts,  varying 
from  each  other  only  in  the  ownership  of  the  money,  goods, 
etc.,  which  it  is  alleged  it  was  the  purpose  of  the  conspiracy 
to  obtain.  Plaintiff  in  error  was  put  upon  trial  alone.  The 
jury  returned  a  verdict  of  guilty,  lixing  his  punishment  at  con- 
finement in  the  penitentiary  for  a  term  of  two  A'cars.  The 
court,  after  overruling  a  motion  for  a  new  trial,  gave  judgment 
upon  this  verdict,  to  reverse  which  this  writ  of  error  is  prose- 
cuted. 

One  Lederer  was  the  owner  of  a  house  in  the  city  of  Chi- 
cago, and  plaintiff  in  ei'ror  was  liis  agent  for  renting  the  same, 
and  had  heen  such  agent  prior  to  and  including  the  year  IST."). 
On  the  21th  day  of  Xovember,  ISTo,  ]\[ary  "Wagner  rented  the 
rooms  on  the  second  floor  of  this  building,  at  a  rental  of  $25 


294 


AMERICAN  CRIMINAL  REPORTS. 


per  month,  and  on  the  next  day  she  moved  into  them,  and  con- 
tinued to  occupy  them  thenceforward  until  near  the  hist  of 
April,  1870.  On  the  20th  of  February,  1880,  plaintiff  in  error 
assumed  to  assign  what  he  claimed  was  a  balance  of  8T5  due 
on  account  of  this  occupancy  of  the  rooms,  to  William  Turner. 
On  the  Dtli  of  July,  1880,  Turner  sued  out  a  writ  of  attachinoiit 
bofoi-e  Demars,  a  justice  of  the  peace  of  Cook  county,  in  favor 
of  Ledorer  and  against  Mary  Wagner,  to  recover  the  amount 
so  assigned  to  him.  The  writ  was  placed  in  the  hands  of 
Michael  ]\rcDonough,  a  constable  of  Cook  county,  to  execute, 
and,  assuming  to  act  by  virtue  of  Hs  authority,  he  seized  goods 
belonging  to  John  Taylor,  in  the  possession  of  I^Iary  Wagner, 
and  one  or  more  articles  of  insignilicant  value  belonging  to  Iior, 
The  venue  was  changed  from  Demars  to  Matson,  another  jus- 
tice of  tlie  peace  of  Cook  county,  and  plaintiff  in  error  a{)i)OiU'ed 
in  obedience  to  a  subpa'na,  and  testified  on  the  trial  before 
Matson.  While  this  attachment  suit  was  pending,  somebody 
representing  liimself  to  be  Franklin  J.  Spencer  sued  out  a  writ 
of  replevin  before  Smull,  also  a  justice  of  the  peace  of  Cook 
county,  for  the  same  ])ropcrty  upon  which  the  writ  of  attacli- 
ment  was  levied.  This  writ  was  placed  in  the  hands  of  Jcjlni 
llorr,  a  constable  of  Cook  county,  to  execute,  llorr,  assuming 
to  act  by  virtue  of  the  writ,  took  the  attached  property  fi'oni 
]\[cDonough  and  placed  it  in  a  warehouse  belonging  to  Iloj-ncr, 
who  issued  duplicate  receipts  therefor,  one  to  ^[cDonou;:;h  and 
ono  to  Miller  —  the  latter  a  name  not  in  anywise  identified  by 
;<  ■•:  of  the  witnesses  as  connected  with  the  transactions.  II. 
'hi.  \>ok  was  bondsman  for  Turner  in  the  attachment  suit,  and 
•t'^(  :<  'I  employee  of  plaintiff  in  error.  The  writ  of  attacliniont 
%i  !-•  'U  tlie  hearing  before  the  justice  of  the  peace,  ([uaslied. 
McDonough  appeared  at  the  return  dny  of  the  writ  in  the 
replevin  suit,  and  there  being  no  prosecution,  judgment  was 
given  for  the  defendant,  and  tluit  the  property  bo  returned  to 
him.  The  warehouse  receipt  issued  in  the  name  of  'Oliller" 
sul>sequently  came  into  possession  of  Mary  Wagner,  and  by 
means  of  it  she  regained  possession  of  the  property  which  had 
been  taken  from  her  by  virtue  of  the  writ  of  attachment. 

The  theory  of  the  prosecution  is,  that  there  was  nothing  duo 
from  Alary  Wagner  to  Lederer  for  the  occupancy  of  the  rooms ; 
that  the  assignment  to  Turner  was  colorable  only,  and  the  suit 


TRASK  V.  THE  PEOPLE. 


295 


brought  pursuant  to  a  previous  agreement  or  understanding 
with  plaintilf  in  error;  that  the  replevin  suit  instituted  in  the 
name  of  Frankhn  J.  Spencer  was,  in  fact,  instituted  by  plaint- 
iff in  error  in  person,  under  that  name,  and  that  both  suits 
were  instituted  as  a  means  whereby  to  enable  plaintiff  in  error 
and  one  or  more  of  .his  co-defendants  to  obtain  this  property. 
On  tlic  question  of  the  indebtedness  of  Mary  Wagner,  there 
was  a  conflict  of  evidence.  Tliere  v/as  also  evidence  tending 
to  si  low  that  the  attachment  suit  was  commenced  by  Turner  of 
his  own  voliti<jn  and  without  the  knowledge  or  encouragement 
of  i)laintiff  in  error,  and  also  that  the  suit  in  the  name  of 
Franklin  J.  Spencer  was  not  commenced  by  plaintiff  in  error, 
but  by  another  person.  If  the  jury  were  warranted  in  finding, 
on  these  several  matters,  in  favor  of  the  plaintiff  in  error,  wo 
think  it  clear  tlieir  verdict  should  have  been  for  the  defend- 
ant, for  there  is  no  other  theory,  warranted  by  the  evidence, 
upoa  which  there  could  be  a  verdict  of  guilty. 

The  plaintiff  in  error  asked  the  court  to  instruct  the  jury  as 
follows: 

"  The  court  instructs  the  juiy  that  if  they  believe,  from  the 
evidence,  that  on  the  1st  day  of  May,  A.  D.  1870,  the  witness 
Mary  L.  AVagner  was  owing  to  tlie  witness  Lederer  a  balance 
for  rent  of  the  premises  ))reviously  occupied  by  hei-,  at  the 
corner  of  Des[)laines  and  Washington  streets;  and  they  further 
believe,  from  the  evidence,  that  she  had  not  paid  that  balance 
that  was  by  her  so  owing  to  said  Lederer  on  the  20tli  day  of 
Februar}',  A.  D.  1880;  and  they  further  believe,  from  the 
evidence,  tliat  on  that  day  the  defendant  Trask  assigned  all  of 
the  interest  of  said  Lederer  and  himself  in  and  to  said  claim  to 
William  L.  Turner,  and  that  said  Turner,  of  his  own  motion, 
without  consultation  Avitli  the  defendant  Trask,  on  the  Otli  day 
of  July,  1880,  commenced  a  suit  by  attachment,  of  Lederer  v. 
WiKjner,  before  Justice  Demars,  and  that  up  to  the  trial  of  said 
cause  said  Trask  was  not  advised  witli  or  about  said  suit,  and 
only  appeared  at  the  trial  of  said  cause  in  response  to  a  sub- 
poena, and  ujion  the  trial  of  said  cause  only  testified  as  to 
the  amount  that  was  due  from  said  Wagner  to  said  Lederer ; 
and  they  further  believe,  from  the  evidence,  that  said  Trask 
was.  on  the  morning  of  the  12th  <lay  of  July,  A.  D.  1880,  in 
Chicago,  and  not  in  Austin,  and  that  he  did  not  appear  in 


urn 


AMERICAN  CRIMINAL  REPORTS. 


Austin  on  that  clay  and  obtain  the  writ  of  replevin  at  the  suit 
of  Fi'anklin  J.  Spencer  against  M.  B.  McDonough,  their  ver- 
dict should  be  not  guilty. " 

The  court  refused  to  give  the  instruction,  and  plaintiff  in 
error  excepted.  "We  think  in  this  there  was  error.  The 
instruction  fairly  presented  the  law  on  the  theory  of  the  case 
contended  for  by  plaintiff  in  error,  and  had  a  basis  in  the 
evidence  on  which  to  rest. 

For  this  error  the  judgment  is  reversed,  and  the  cause  re- 
manded. 

Judgment  reversed. 


The  State  v.  Yines  et  al. 

(34  La.  Aim.,  1079.) 

Intent:  Autrefois  acquit — Autrefois  convict. 

What  toentity  of  the  offenses  charged  is  necessary  to  support 
the  pleas  of  autrefois  convict  and  op  autrefois  acquit.—  Proof  of 
a  different  crime  from  the  one  charged,  though  generally  ol)joctionablo, 
is  admissible  when  both  offenses  are  closely  linked  or  connected,  espe- 
cially in  the  res  gestce,  and  also  when  such  proof  is  jjcrtinent  and  nec- 
essary to  show  intent. 

Conspirators  held  responsible  although  they  did  not  intend  to 
commit  the  particular  crime. —  When  ixirties  are  engaged  in  the  com- 
mission of  a  crime  with  malicious  intent,  and  in  the  execution  thereof 
perpetrate  another  criminal  act  not  originally  intended,  the  unintondod 
act  derives  its  character  from  the  mtended  crime,  and  the  original  mali- 
cious intent  affects  both  acts. 


Appeal  from  the  Eleventh  District  Court,  Parish  of  Sabine. 
Pierson,  J. 

The  opinion  of  the  court  Avas  delivered  by 

Fexner,  J.  Briefly  stated,  tlie  facts  essential  to  an  under- 
standing of  the  points  of  law  raised  are  the  following : 

The  defendants,  Lee  Vines  and  George  L.  Vines,  in  execution 
of  a  conspiracy  to  kill  one  John  Pye,  lay  in  wait  upon  a  road 
along  which  Pye,  Avho  had  been  arrested  upon  the  affidavit  of 
one  of  them,  was  conducted,  in  official  custody,  to  the  office  of 


THE  STATE  v.  TINES. 


297 


the  ma^^istrato.    Pye  was  accompanied  by  liis  son-in-law,  "W. 
T.  Smith. 

On  the  approach  of  the  party,  Lee  Yincs  shot  and  killed 
John  Pye,  and,  in  the  course  of  the  affair,  George  L.  Vines,  it 
is  charged,  shot  and  killed  AV.  T.  Smith. 

Separate  indictments  wei'e  filed  against  both ;  one  charging 
them  with  the  murder  of  Pye ;  the  other,  with  the  murder  of 
Sinitli. 

Tlie  case  for  the  murder  of  Pye  was  first  tried,  and  resulted 
in  a  verdict  convicting  Leo  A^'ines  of  manslaughter,  and  acquit- 
ting George  L.  Vines. 

The  case  now  before  us  is  for  the  murder  of  Smith. 

In  bar  of  the  prosecution,  the  defense  interposes  the  plea  of 
autrefois  convict  in  behalf  of  Lee  Vines,  and  autrefois  acquit  in 
■  behalf  of  George  Vines. 

Error  is  assigned  in  the  ruling  of  the  court  setting  aside  these 
pleas. 

The  principle  of  the  law  underlying  such  pleas  is,  that  the 
law  Avill  not  suiTer  a  man  to  be  twice  put  in  jeopardy  for  the 
same  offense.     1  Archbold's  Cr.  Pr.  and  PL,  111. 

Tlie  principle  is  embodied  in  our  constitution,  in  the  folloAV- 
ing  language :  "  nor  shall  any  person  be  twice  put  in  jeopardy 
for  the  same  offense." 

Identity  of  the  offense  charged  is  an  essential  element  m  sup- 
port of  tlie  plea. 

By  tills  is  not  meant  formal,  technical,  absolute  identity,  but 
only  such  substantial  identity  that  the  evidence  necessary  to 
support  the  second  indictment  Avould  have  been  sufficient  to 
procure  a  legal  conviction  upon  the  first.  Peojjie  v.  Bari'et,  1 
Johns.,  GO ;  Com.  v.  Cunningham,,  13  Mass.,  245 ;  Jliie  v.  State, 
9  Yergor,  ;;.-;7;  AVharton's  Cr.  Pr.  and  PL,  §  471;  1  Archbold's 
Cr.  Pr.  and  PL,  p.  112. 

In  the  instant  case,  it  is  clear  that  the  indictment  for  the 
murder  of  Smith  might  have  been  supported  by  evidence,  not 
including  proof,  even  of  the  killing  of  P3'e,  and,  therefore,  ut- 
terly insuflicient  to  sustain  an  indictment  for  the  murder  of  the 
latter. 

The  cons]>iracy  and  the  malicious  intent  may  have  been  com- 
mon elements  of  both  crimes,  but  this  is  not  sufficient  to  con- 
stitute identity  of  the  crimes  themselves,  which  comprise  not 
only  those  elements,  but  also  objective  acts. 


293 


AMERICAN'  CRIMINAL  REPORTS. 


The  killing  of  Smith  by  Georn^o  Vines  is  a  totally  distinct  and 
different  offense  from  the  killing  of  Pye  by  Leo  Vinos,  althou<,'h 
both  acts  Averc  done  in  execution  of  the  same  conspiracy.  Tlicy 
a,re  not  different  grades  of  the  same  crime.  They  are  not  t\vo 
felonies  resulting  from  the  same  identical  act.  They  are  not 
different  aspects  of  the  same  unlawful  act.  They  bear  no  rela- 
tion to  each  other,  in  which  one  of  them  can  be  said  to  bo 
moujoil  in  the  other.  They  are  included  in  none  of  the  liair- 
splitting  distinctions  which  have  involved  this  subject ;  in  the 
lan^-uatire  of  Mr.  AVharton,  "in  a  labvrinth  of  subtleties.'" 

The  eop^ins  delicti  in  each  is,  in  every  respect,  distinct  and 
inde})endent. 

We  are  not  concerned,  and  it  is  not  necessary  to  reconcile 
the  conclusions  of  the  juries  in  the  two  cases  on  the  fact  of  the 
conspiracy.  The  vei'dict  against  George  Vines,  at  least.  nii<>ht 
rest  without  any  proof  whatever  of  conspiracy,  if  Smith  was 
killed  by  his  hand ;  which  is  alone  sufficient  to  show  the  un- 
soundness of  the  plea,  so  far  as  based  upon  the  element  of 
cons[)iracy.  But  holding  that  the  pleas  of  twice  in  jeopardy 
Avere  properly  overruled,  tlie  jury  was  vested  with  the  power 
of  deciding  all  questions  involved. 

Tln-ee  bills  of  exception  are  found  to  rulings  of  the  court 
upon  reception  of  evidence: 

1.  The  first  exception  Avas  to  permitting  the  state's  witness 
to  "narrate  the  whole  occurrence,  as  it  took  place  at  the  time 
of  the  killing  of  Smith,"  the  objections  being  that  this  included 
the  killing  of  Pye,  which,  being,  a  distinct  felony,  wa.^  not  ad- 
missible; and  because  conspriacy  was  not  expressly  charged. 

The  court  overruled  the  objections,  because  the  evidence  was 
admissible  as  part  of  the  res  gestw,  and  because  the  accused 
were  all  charged  as  principals. 

The  ruling  is  fully  sustained  by  authority.  As  a  general 
rule,  all  that  occurs  at  the  time  and  place  of  the  killing,  in 
homicide  cases,  is  admitted  as  res  f/estw.  Wharton's  Cr,  Ev., 
sec.  202  ct  seq. 

Proof  of  a  different  crime  from  the  one  charged,  though  gen- 
erally objectionable,  is  admissible  when  both  offenses  are  closely 
linked  or  connected,  especially  in  the  res  (jesttv,  and,  also,  Avhen 
such  proof  is  pertinent  and  necessary  to  show  intent.  Siate  v. 
IfulhoUnnd,  IG  Ann.,  377;  State  v.  Patza,  3  Ann.,  512;  State  v. 
Jiohfrlsoht,  12  Ann.,  382 ;  Wharton's  Cr.  Ev.,  sec.  262  et  se^. 


STATE  V.  BROWN. 


299 


2.  Exception  was  taken  to  a  question  propounded  by  the 
state  to  a  witness,  asking  if  he  knew  of  any  ill-feeling  existing 
between  Vines  and  Pyo,  which  was  objected  to  on  the  grounds 
tliat  it  was  res  inter  alios  and  not  admissible  to  discover  malice 
as  to  deceased,  Smith. 

The  judge,  in  overruling  the  objection,  recites  that  the  evi- 
dence had  established  the  facts,  already  substantially  stated  by 
us  iu  tlio  beginning  of  tliis  opinion,  and  admitted  the  evidence 
as  tending  to  sliow  ujjon  wliat  malice  the  accused  lay  in  wait 
and  acted,  holding  that  whether  the  malice  was  against  Pye  or 
Smith  was  immaterial,  if  the  killing  of  Smith  was  the  result 
of  such  malice. 

This  is  sound  law;  the  principle  being,  that  when  parties  are 
enffajjcd  in  the  commission  of  a  crime  Avith  malicious  intent,  and 
in  the  execution  thereof  pei'jwtrate  another  criminal  act  not 
originally  intended,  the  unintended  act  derives  its  character 
from  tlie  intended  crime,  and  the  original  nuilicious  intent  af- 
fects both  acts.     1  AVharton's  Cr.  L.,  sec.  12S. 

3.  The  last  bill  of  exceptions,  as  to  the  admissibility  of  evi- 
dence showing  when  the  trial  of  Pye,  ui)on  the  charge  on 
wliieli  he  was  under  arrest  at  the  time  of  the  killing,  was  fixed, 
seems  to  us  immaterial  and  frivolous. 

Judyinent  affirmed. 


State  v.  Bkown. 
(00  N.  H.,  205.) 


iNTOXiCATixa  LIQUORS:  Pharmacists. 

iNTOxiCATixa  LIQUORS  — Phakmacists.— A  statute  which  authorizes  phar- 
miioists  lawfully  rogljitorod  to  keep  spirituous  liquors  for  compound iug 
iiiedicinos  does  not  confer  the  right  upon  thom  to  sell  the  liquors  to 
otlicrs  over  whom  they  have  no  control,  to  bo  by  them  compounded 
with  medicines. 


Jewell  cf?  Stone,  for  the  respondent. 
B.  A.  Hogers,  solicitor,  for  the  state. 

Smith,  J.    The  sale  of  spirituous  or  intoxicating  liquors,  ex- 
cept by  an  agent  of  a  town,  is  forbidden  by  statute.     Gen. 


300 


AMERICAN  CRIMINAL  REPORTS. 


Laws,  cli.  109,  sec.  13.  But  pharmacists  lawfully  registered 
may  keep  spirituous  liquors  for  compounding  their  medicines. 
Gen.  Laws,  ch.  133,  sec.  7.  The  right  to  keep  spirituous  licpiors 
for  a  specific  purpose  undoubtedly  includes  the  right  to  sell  the 
medicines  so  compounded.  What  the  pharmacist  himself  may 
do  he  may  dc  '.y  his  servant  or  agent.  But  the  statute  nowliere 
confers  the  right  upon  the  pharmacist  to  sell  spirituous  li(piors 
before  it  is  compounded  with  medicine,  or  to  bo  compounded 
with  medicine  by  the  purchasers  or  others  not  his  servants. 
The  right  to  sell  such  liqr.ors  for  the  purpose  of  being  com- 
pounded Avith  medicines  is  not  to  be  inferred  from  the  riglit  to 
keep  them  for  the  purpose  of  being  so  compounded.  When  tlie 
materials  are  delivered  uncompounded  the  vendor  has  no  longor 
any  control  over  them;  the  purchaser  is  under  no  legal  obliga- 
tion to  mix  the  materials,  and  opportunities  for  defeating  tlio 
object  of  the  statute  —  the  suppression  of  the  sale  of  intoxicat- 
ing liquors  —  are  thereby  increased. 
Whether  this  is  a  case  wliich  the  attorney-general  ought  to 

•,'0  o 

allow  to  go  to  judgment  is  a  question  for  him  to  consider. 

Ju'cej^tions  overruled. 

FosTiiij,  J.,  did  not  sit.     The  others  concurred. 


State  v.  Fay. 

(44  N.  J.,  474.) 

Intoxicatixo  liquors :  Single  sale— "  rrohibillon"—" Regulation." 

1.  Single  sale.— Under  the  "Malt  Liquors  Act,"  aiiprovotl  April  4,  ISTi 

(Rev.,  p.  494,  g  13),  a,  single  sale  of  any  of  the  liquors  mentioned  witii- 
out  license  makes  the  seller  Uablc  to  indictment  as  keeper  of  a  di'or- 
derly  house. 

2.  Construction  of  license  law  with  p.efeuence  to  charter.— The 

act  is  operative  throughout  the  state  except  in  townships,  cities  and  in- 
corporated towns,  where  laws  arc  in  force  regulating  the  sale  of  such 
li(juors  outside  of  inns  and  taverns. 

3.  Same — "Prohibition" — "Regulation." — Authority  conferred  upon  a 

town  to  prohibit  all  traffic  in  or  sale  of  intr.xicating  driidis,  with  i'.i;- 
thority  to  license,  regulate  or  prohibit  inns  or  taverns,  held,  not  to  lin- 
brace  authority  to  regulate  the  sale  of  liquors  outside  of  inns  and 
taverns. 


STATE  V.  FAY. 


301 


On  Error  to  tlio  Atlantic  O^-cr  and  Terminer,  TJeforo  Bcas- 
Icy,  Chief  Justice,  and  Justices  Dixon,  Magic  and  Parker. 

A.  IT.  Sharp,  for  the  state. 

//.  L.  &  A.  L.  Slape^  for  the  plaintiff. 

The  opinion  of  the  court  was  delivered  by 

Dixox,  J.  The  defendant  Avas  indicted  for  keeping  a  disor- 
derly house  in  the  town  of  Ilamnionton,  Atlantic  county.  The 
offonse  proved  was  the  sale  of  lager  beer  in  less  quantity  than 
a  quart,  to  bo  drunk  upon  the  premises  where  it  was  sold,  with- 
out license ;  and  the  court  charged  that  such  a  sale  on  more  than 
one  occasion  constituted  guilt  under  the  indictment.  The  de- 
fendant by  writ  of  error  comj)lains  of  this  instruction. 

The  charge  can  bo  sustained  onl}"  by  force  of  the  thirteenth 
section  of  the  act  to  regulate  the  sale  of  ale  and  other  malt 
liquors,  approved  April  4,  18T:J  (liev.,  p.  404),  which  provides 
tliut  if  any  person  shall  sell  any  of  the  liquors  aforesaid  (among 
thoni  being  lager  beer)  without  license  first  obtained,  accord- 
ing to  the  act,  then  such  person  shall  bo  held  as  a  keeper  of  a 
disorderly  house,  and  be  liable  to  indictment  and  punishment 
as  such. 

Tiiis  statute,  if  applicable,  ])lainly  rendered  the  defendant 
subject  to  conviction  of  the  oll'ense  alleged  and  justiiied  the 
charge.  But  it  is  claimed  to  bo  inapplicable,  because  its  four- 
tccntli  section  declares  that  none  of  its  pi-ovisions  shall  apply 
to  any  township,  city  or  incorporated  town  in  which  laws  are 
in  force  regulating  the  sale  of  any  of  the  liquors  mentioned  in 
tlie  act. 

The  question,  therefore,  becomes  resolved  into  this:  Avhether 
in  the  town  of  llammonton  there  were  in  force  any  laws  (e.  e. 
any  laws  other  than  the  general  law)  regulating  the  sale  of 
these  liquors.  The  only  law  referred  to  by  the  defendant  is 
the  act  incorporating  the  town  (Pamph.  L.  1800,  p.  188),  the 
twenty-third  section  of  which  provides  that  the  corporation 
may  have  power  to  pass,  enforce,  alter  and  repeal  ordinances 
to  take  effect  within  the  town  for  the  following  purposes,  to 
wit:  .  ,  ,  to  license,  regulate  and  prohibit  inns  or  taverns, 
and  to  prohibit  all  traffic  in  or  sale  of  intoxicating  drink  or 
drinks. 


302 


AMERICAN  CRIMINAL  REPORTS. 


The  cl.iuse  in  this  charter  concerning  inns  and  taverns 
should  not  be  permitted  to  exclude  from  the  town  the  opora- 
tion  of  the  "  Malt  Liquors  Act,"  for  the  reason  that  in  our 
legislation  the  keeping  of  inns  and  the  retail  tralRc  in  malt 
liquors  are  treated  as  distinct  subjects  of  regulation.  Although 
iim-keepors  may  under  their  licenses  retail  malt  liquors,  and 
so,  in  a  sense,  laws  regulating  ini»e  regulate  the  sale  of  these 
liquors,  yet  we  think  that  the  laws  regulating  such  sale,  Avhich 
are  intended  by  this  fourteenth  section,  are  those  laws  refer- 
ring to  the  traffic  apart  from  inn-keeping,  laws  which  in  tliis 
respect  resemble  the  "  Malt  Liquors  Act "  itself.  Ilencc,  no 
support  for  the  defendant's  contention  is  to  bo  derived  from 
this  clause  of  the  charter. 

But  does  the  clause  for  the  pi'ohibition  of  all  traflTic  in  intox- 
icating drinks  constitute  a  law  for  the  regulation  of  the  sale  of 
these  liquors,  and  so  save  the  town  from  the  operation  of  the 
statute  ? 

The  leading  rules  for  the  construction  of  municipal  charters 
are  well  summed  up  by  Mr.  Dillon  as  follows:  *' A  municipal 
corporation  possesses  and  can  exercise  the  following  powora 
tand  no  others:  First,  those  granted  in  express  words;  second, 
those  nettessarily  or  fairly  implied  in  or  incident  to  tlio  powers 
expressly  fjranted;  third,  those  essential  to  the  declared  objects 
and  pur,  ies  of  the  corporation,  not  simply  convenient,  but 
indispensable.  Any  fair,  reasonable  doubt  concerning  the  ex- 
istence of  power  is  resolved  by  the  courts  against  the  corpora- 
tion, and  the  power  is  denied."  1  Dill,  on  Mun.  Corp.  (3d  ed.), 
§  89. 

In  the  charter  now  before  us  the  power  expressly  granted  is 
the  power  to  prohibit  the  sale.  This  is  not  equivalent  to  nor 
does  it  fairly  embrace  a  power  to  regulate.  The  exercise  of 
the  latter  power  provides  for  the  continuance  of  the  traffic 
under  prescribed  rules;  the  former  power  is  to  bo  wielded  only 
for  its  suppression.  As  was  said  in  Sc/iwxf/iow  v.  Chhuujo,  G8 
III.,  444: :  "  To  suppress  must  mean  to  prevent  and  not  to  license 
or  sanction  the  act  to  be  suppressed.  It  would  bo  a  contusion 
of  tei  ms  to  say  that  a  thing  is  suppressed  when  it  is  protected, 
licensed  or  encouraged."  And  in  C'dy  of  Sf.  Louh  v.  Sni'dh,  2 
Mo.,  113,  the  court,  speaking  of  authority  to  restrain  and  pro- 
hibit tippling-houses,  said:  "The  legislature  intended  to  give 


STATE  V.  FAY. 


303 


the  corporation,  by  the  words  'restrain  and  prohibit,'  two 
powers;  one  was  to  prohibit  their  existence  altogether,  if  they 
thought  it  best  to  do  so,  and  the  other  was  to  keep  them 
witiiin  certain  limits,  as  to  the  number  and  order,  as  they 
should  think  best." 

In  Gnnnarssohn  v.  City  of  Sterling,  92  111.,  5G9,  it  was  indeed 
said  that  a  general  power  to  prohibit  is  sulRcient  to  authorize 
any  i)artial  prohibition  deemed  advisable,  but  the  court  was 
speaking  of  an  oi'dinance  which  merely  forbade  sales  in  quan- 
tities loss  than  five  gallons,  and  did  not  attempt  to  regulate 
permitted  sales.  By  carrying  out  this  notion  of  partial  inter- 
diction to  its  furthest  extent,  it  might  be  made  to  ai)pcar  that 
a])r()hibition  of  all  sales  which  wore  not  made  in  courormity 
Avith  designated  requirements  would  operate  as  a  ro:^ulation  of 
the  tratUc ;  but  an  exercise  of  the  power  to  prohibit,  with  this 
end  of  regulation  in  view,  would  be  a  manifest  strain  of'author- 
ity,  and  of  such  doubtful  propriety  as  to  come  under  the  con- 
demnation of  the  rules  before  mentioned.  For  intrinsically, 
regulation  and  prohibition  range  in  di  tie  rent  sphei'cs;  no  sale 
which  is  prohibited  is  regulated,  and  none  regulated  is  ])rohib- 
itcd.  This  interpretation  of  the  grant  of  power  in  this  charter 
is  enforced  by  the  context.  The  power  immediately  preceding 
this  is,  "to  license,  regulate  and  prohibit  inns  and  taverns." 
The  power  immediately  following  is,  "to  license,  regulate  and 
prohibit  hawkers  and  peddlers."  This  power  is  merely  "  to 
prohibit  all  traftic  in  or  sale  of  intoxicating  drinks."  Such 
language  is  tantamount  to  a  declaration  that  the  legislature 
gives  authority  to  prohibit,  but  withholds  authority  to  license 
or  regulate  the  traiHc. 

;^^y  conclusion  therefore  is,  that  in  neither  of  these  clauses 
which  •  L'latc  to  inns  and  intoxicating  drinks,  is  there  expressed, 
or  by  fair  implication  to  bo  found,  any  law  for  regulating  the 
sale  of  malt  liquors  in  the  town,  outside  of  inns  and  taverns. 

The  other  provisions  of  the  charter  relating  to  nuisances  and 
vice  and  immorality  have  been  noticed,  but  it  is  not  i)erceived 
that  they  contain  any  warrant  for  regulating  the  mere  sale  of 
malt  li(piors ;  such  sale,  of  itself,  except  so  far  as  it  is  interdicted 
by  positive  statute,  is  not,  under  our  law,  cither  a  nuisance  or 
vici(jus  or  immoral.  Xor  is  there  any  declared  object  or  pur- 
pose; of  the  corporation  to  which  this  power  of  regulation,  in 


304 


AMERICAN  CRIMINAL  REPORTS. 


addition  to  the  power  of  prohibition  or  suppression,  scorns  in- 
dispensable. Hence  the  "  Malt  Liquors  Act "  prevails  in  the 
town  of  Ilammonton,  and  under  its  provisions  the  defendant 
■was,  for  a  single  sale,  rightly  convicted  of  keeping  a  disorderly 
house,  and  the  judgment  below  shoidd  be  affirmed. 


SiFKED   V.    CoMMONWEALXn. 

(104  Pa.  St.,  179.)' 

iNTOXiCATiNa  liquors:  Sunday — statutory  construction. 

1.  Tlio  act  of  April  12,  1875,  prohibiting  the  sale  of  liquor  on  Sunilay,  and 

providing  a  penalty  by  fine,  docs  not  repeal,  by  implication,  the  prior  act 
of  February  20,  1855,  prohibiting  the  sale  of  liquor  on  Sunday,  and  pro- 
viding a  penalty  by  line  and  imprisonment. 

2.  Repeal  by  implication  of  a  prior  statute  by  a  later  one. 

Before  Mercur,  C.  J.,  Gordon,  Trunkey,  Sterrett.  Green  and 
Clark,  JJ. 


Paxon,  J.,  absent. 


JIazlctt  (0  Williams  (with  Eocl^),  for  plaintiffs  in  eri'or. 
W.  II.  Klingensmith  (with  Silas  A.  Kline,  district  attorney); 
for  the  defendant  in  error. 

Chief  Justice  Mercitu  dclivei'ed  the  opinion  of  the  court. 

The  plaintilfs  in  error  plead  guilty  to  an  indictment  contain- 
ing two  counts.  It  is  framed  under  section  1  of  tlie  act  of  2nth 
of  February,  1885  (Pur.  Dig.,  040,  pi.  38).  The  flr!;t  count 
charges  them  Avith  selling  liquors  on  Sundny;  the  other  count 
charges  that  they  did  unlawfully'  and  knowingly  allow  and 
permit  liquors  to  be  drunk  on  Sunday,  on  and  within  the  house 
and  premises  kept  and  maintained  by  them.  The  court  there- 
upon sentenced  them  to  imprisonment  for  a  period  of  sixty  days, 
imposed  a  fine  of  $100  and  the  costs  of  prosecution  on  cacli, 
under  section  3  of  said  act. 

The  plaintiffs  in  error  claim  that  in  so  far  as  this  act  of  1855 
prescribed  the  punishment  for  selling  liquors  on  Sunday,  it  was 
repealed  by  the  act  of  12th  April,  1875  (P.  L.,  40).  Error  is 
assigned  to  the  sentence. 

It  is  well  settled  that  express  provision  of  a  subsequent  Irv 


SIFRED  V.  COMMONWEALTH. 


305 


is  not  absolutely  necessary  to  repeal  a  statute.  It  may  be  re- 
pealed by  necessary  implication.  The  leaning,  however,  of  the 
courts  is  strongly  against  repealing  the  positive  provisions  of 
a  former  statute  by  construction.  Dwarr.  on  Stat.,  154.  The 
more  natural,  if  not  necessary,  inference  in  all  such  cases  is, 
that  the  legislature  intend  the  new  law  to  be  auxiliary  to  and 
in  aid  of  the  purposes  of  the  old  law.  There  should  therefore 
be  such  a  manifest  and  total  repugnancy  in  the  provisions  of 
the  new  law  as  to  lead  to  the  conclusion  that  the  latter  law 
abrogated,  and  was  designed  to  abrogate,  the  former.  There 
are  cases,  however,  in  which  it  is  held  that  although  the  latter 
statute  be  not  repugnant  to  the  former  one,  and  there  be  no 
express  provision  in  the  latter  repealing  the  former,  yet  if  the 
latter  prescribe  the  only  rules  which  shall  govern,  it  repeals 
the  former  one  in  all  those  respects  in  which  it  differs  from  the 
latter  in  the  governing  rule.  Daviess  v.  Fairhurn^  3  How.  U. 
S.  K.,  030.  The  general  rule,  however,  is  that  there  must  be 
such  a  positive  repugnancy  between  the  provisions  of  the  new 
statute  and  the  old  that  they  cannot  stand  together  or  be  con- 
sistently reconciled.  Walhxcc  y.  Bassett,  41  Barb.,  92;  MeCool 
V.  Sinifh,  1  Black,  U.  S.  R.,  459;  Bank  v.  Cormnonwealf/i,  10 
Barr,  442;  Brown  v.  Gonnfij  Commissioners,  9  Harris,  37.  If 
it  be  possible  that  both  can  stand  by  construction,  then  the 
proper  inquiry  is,  what  was  the  intention  of  the  legislature? 
Did  it  mean  to  repeal  the  former  law,  or  was  the  new  law  in- 
tended to  be  merely  cumulative ?  United  States  v.  Case  of  Hair 
Pencils,  1  Paine,  400. 

The  act  of  1S75  referred  to  contjiins  twelve  sections,  yet  no 
one  of  them  makes  any  reference  to  the  act  of  1855.  Section 
1  expressly  repeals  the  act  of  27th  IVfarch,  1872,  which  author- 
ized a  vote  to  be  taken  every  three  years  on  the  question  of 
granting  licenses  to  sell  intoxicating  liquors.  Section  2  pro- 
vides when  and  under  what  rules  licenses  for  the  sale  of  liquors 
may  be  granted.  Section  3  provides  for  the  classification  of 
hotels,  inns  and  taverns,  and  sjieciiies  the  sum  which  those  of 
each  class  shall  pay.  Then  section  4,  inter  alia,  declares  "that 
any  sale  made  of  vinous,  spirituous,  malt  or  brewed  liquors,  or 
any  admixture  thereof,  contrary  to  the  provisions  of  this  law, 
shall  be  taken  to  be  a  misdemeanor,  and  upon  the  conviction  of 
the  offense  in  the  court  of  quarter  sessions  of  the  peace  of  any 
Vol.  IV  —  20 


300 


AMERICAN  CRIMINAL  REPORTS. 


city  or  county,  the  person  so  offending  shall  bo  sentenced  to 
pay  a  fine  of  not  loss  than  $200,  nor  more  than  8">00." 

The  previous  sections  of  the  act  changed  the  classification 
tand  increased  the  sums  which  the  keepors  of  hotels  wei'o  re- 
quired to  pay  for  licenses  under  pi'ovious  laws,  and  section  4 
imposed  the  penalty  stated  for  their  violation.  Section  5  pro- 
vides tliut  the  lines,  ])enalties  and  proceeds  of  forfeited  bonds 
be  ])aid  to  the  city  or  county  treasurer.  Section  G  directs  every 
constal)lo  to  make  return  of  retailers  of  liquors,  and  also  uiulor 
oath  of  iiny  unlicensed  place  within  his  bailiwick,  within  his 
knowledge,  kept  and  maintained  in  violation  of  this  act,  and 
upon  his  wilful  failure  to  do  so,  after  being  duly  notified  in 
writiiig,  he  shall  be  deemed  guilty  of  the  crime  of  j)crjurv.  and 
subject  to  its  penalties.  Section  7  provides,  when  a  person  has 
the  habit  of  drinking  intoxicating  liquor  to  excess,  that  eitlier 
member  of  his  family  therein  specified  may  give  written  notice 
to  any  person  not  to  sell  or  deliver  intoxicating  litpior  to  the 
person  having  such  habit,  and  if  the  person  so  notified  docs 
sell  and  deliver  such  licpior  to  the  person  having  such  habit,  the 
person  giving  the  notice  may  in  action  of  tort  recover  ol'  the 
pereon  notified  any  sum  not  less  than  $50,  nor  more  than 
$500,  as  may  be  assessed  by  "  the  court  or  judge,"  as  danuigos. 
Section  8  prohibits  non-residents  of  this  commonwealth  how 
engaging  in  selling,  trading  or  vending  intoxicating  licnioi- 
within  the  commonwealth.  Section  1>  provides  for  the  cancel- 
lation of  bonds  given  under  the  act,  and  the  releasing  of  sure- 
ties therefrom.  Section  10  [)resci'il)os  the  form  and  condition 
of  the  bond  which  shall  be  executed  to  obtain  a  license  to  soil 
intoxicating  drinks.  Secticm  11  declares  "it  shall  not  be  law- 
ful fcM'any  person,  with  or  withoiit  license,  to  sell  to  any  per- 
son any  intoxicating  drink,  on  any  day  on  wliich  elections  are 
now  or  hereafter  may  be  requii-od  to  be  held,  nor  on  Sunday, 
nor  at  any  time  to  a  minor,  or  to  a  person  visibly  affected  by 
intoxicating  drinks."  This  is  the  Avhole  section.  Neither  it 
nor  the  subsequent  section  ])rescribes  any  penalty  for  its  viola- 
tion. It  is  bv  virtue  of  this  section,  standiu"-  as  it  does  re- 
moved  from  section  4,  and  making  no  reference  thereto,  that 
the  plaintiffs  in  error  claim  the  punishment  prescribed  by  the 
act  of  IS.k")  is  repealed. 

We  have  thus  referred  to  the  act  of  1875  at  length  and  in 


SIFRED  V.  COMMONWEALTH. 


307 


l»y 
it 
olii- 
\v- 
W.d 
tlio 


detail  to  show  that  no  part  thereof  in  any  manner  refers  to 
the  act  of  1855.  Tliat  no  repeal  of  the  latter  was  intended  is 
apparent  from  the  whole  act  of  1875. 

1.  Any  existin;;^  act  supposed  to  he  in  conflict  therewith  or 
sui)er.se(led  tliereby  was  oxjiressly  repealed  by  the  first  section. 

2.  The  act  clearly  indicates  an  intention  to  present  sepa- 
rate] v  the  different  requirements  of  the  law,  and  to  provide  a 
specilic  penalty  for  the  violation  of  eacli.  Thus  the  punish- 
ment prescribed  in  section  4  was  desij^ned  to  ai)ply  to  violations 
of  the  law  under  })revious  sections  of  the  act.  Section  6  made 
certain  acts  a  crime,  and  immediately  provided  a  specific  pen- 
alty therefor.  In  like  manner,  section  7  created  an  offense, 
and  prescribed  the  penalty  to  bo  imposed  on  the  offender. 

No  section  prior  to  section  11  in  any  manner  refers  to  any 
of  the  offenses  therein  stated.  We  are  satisfied  there  was  no 
intention  to  subject  a  person  guilty  of  the  acts  mentioned  in 
the  eleventh  secticm  to  the  penalties  prescribed  in  the  fourth 
section.  The  reasonable  conclusion  is  tiiat  section  11  was 
iulded  tlir<)U<^-h  abundance  of  caution  to  negative  any  pre- 
sumption that  the  licenses  granted  under  sections  2  and  3 
would  authorize  the  sale  of  li(pior  on  any  of  the  days  men- 
tioned in  section  11. 

The  act  of  8th  May,  1854,  authorized  the  imposition  of  a 
fine  and  imprisonment  for  wilfully  furnishing  intoxicating 
drinks  to  any  person  of  known  intemperate  habits,  to  a  minor 
or  to  an  insane  person,  for  use  as  a  beverage.  The  act  of  26th 
February,  1855,  l)efore  cited,  authorizes  the  imposition  of  a 
fine  and  imprisonment  on  one  selling  li(pu)r  on  Sunday,  or  on 
one  i)ermitting  it  to  be  drank  on  that  day  on  his  premises. 
The  act  of  IHth  March,  1S72,  makes  it  a  misdemeanor  to  sell, 
furnish  or  give  away,  to  be  used  as  a  drink,  any  intoxicating 
beverage  on  election  days,  when  by  law  an  election  is  in 
progress  in  said  district,  an<l  subjects  the  offender  to  imprison- 
ment for  a  term  of  not  more  than  one  hundred  days,  and  to  a 
fine  of  not  more  than  ^5(i(). 

Although  the  act  of  1875  does  not  refer  to  any  of  these  for- 
mer acts,  nor  to  the  punishments  ]>rovided  for  those  offenses, 
yet  the  construction  claimed  for  the  act  of  1875  by  the  plaintiffs 
in  error  would  modify  all  those  several  acts  and  strike  there- 
from all  power  of  the  courts  to  sentence  to  imprisonment  persons 


308 


AMERICAN  CRIMINAL  REPORTS. 


convicted  of  the  offenses  therein  stated.  This  is  asking  us  to 
assume  too  much.  We  are  not  questioning  legislative  power 
to  repeal  or  modily  the  sentences  to  be  imposed.  Wo  are 
merely  considering  the  question  of  implied  intention  to  be 
gathered  from  tbe  lin'"'"'i<];e  used.  We  think  the  power  given 
to  the  court  to  senter  .n  :or  the  act  of  1855  was  in  no  miinner 
repealed  by  the  act      .  .7.. 

Judgment  affirmed. 


The  People  v.  Dolan. 

(51  Mich.,  610.) 
Jeopardy:  Jury  — Challenge. 

1.  A  peremptory  challenge  is  not  allowable  in  a  criminal  case  after  the  jury 
has  been  sworn. 

S.  After  the  jury  in  a  criminal  case  was  sworn  the  prosecuting  attorney  was 
allowed  a  ijeremptory  challenge,  and  a  new  juror  being  chosen,  the  jury 
was  again  sworn.  Held,  that  so  long  as  the  jury  first  swon  wius  not 
legally  discharged,  there  could  not  be  two  juries  sworn  to  try  the  .sumo 
case :  and  a  conviction  by  the  latter  jury  was  set  aside  and  the  prisoner 
discharged. 

Cramer  i&  Corhin,  for  responden*^^.  appellant. 

SuERwoon,  J.  The  respondent  in  this  case  was  convicted  in 
the  Washtenaw  circuit  court  of  a  violation  of  the  statute  re- 
lating to  closing  saloons  on  election  days.  Act  259,  Pub.  Acts 
1881.  The  consideration  of  the  first  exception  taken  by  dofonil- 
ant  is  alone  sufficient  to  dispose  of  this  case,  and  it  will  bo  un- 
necessary to  consider  any  of  the  other  exceptions,  altliougli  wo 
think  several  are  well  taken. 

After  the  jurx--  was  impaneled,  the  prosecuting  attorney  was 
absent  from  the  court-room  a  few  moments,  and  during  sucli 
absence  the  jury  was  duly  sworn  by  the  court  to  try  the  cause. 
Immediately  thereafter  the  prosecuting  attorney  returned  into 
the  court-room  and  insisted  upon  his  right  to  still  examine  tlie 
jurors  before  they  were  impaneled  and  sworn,  and  the  conit 
thereupon  permitted  him  to  challenge  peremptoi'ily  one  of  the 
jurors  impaneled,  and  another  was  called  and  sworn  in  li"s 
place,  and  the  jury,  as  thus  constituted,  was  thereupon  sworn 
to  try  the  case.  The  proceedings  were  objected  to  by  defiMid- 
ant's  counsel  on  the  ground  that  a  jury  had  already  beo:i  rog- 


ADAMS  V.  THE  STATE. 


309 


ularly  impaneled  and  sworn  in  the  cause,  and  further  objected 
to  tlie  serving  of  the  jury  in  the  case  as  then  constituted. 
The  court  overruled  the  objection,  and  defendant's  counsel  ex- 
cepted, and  the  court  then  proceeded  with  the  trial.  This  was 
error. 

The  statute  clearly  points  out  the  various  steps  required  to 
be  taken  in  obtaining,  impaneling  and  swearing  a  jury  for  the 
trial  of  a  cause  in  a  court  of  record.    2  Comp.  L.,  pp.  172G- 

i7;n. 

There  can  be  no  departure  from  these  requirements  without 
tlie  express  consent  or  stipulation  to  that  effect  of  the  parties. 
Only  one  jury  can  bo  impaneled  and  sworn  to  try  a  case, 
unless  the  jury  first  impaneled  has,  for  some  n  ason,  been 
le^ially  discharged. 

In  this  case  two  juries  were  sworn  to  try  the  case,  and  the 
(irst  had  not  been  discharged  by  the  court  when  the  trial  com- 
menced before  the  second,  which  rendered  the  verdict  com- 
plained of.  We  know  of  no  practice  or  statute  which  will 
allow  a  proceeding  of  this  kind. 

Tiic  conviction  should  be  set  aside  and  the  respondent  dis- 
charged. 

The  other  justices  concurred. 

Note.— In  Reg.  v.  Reeve,  Lond.  Leg.  Obs.  (Feb.  15,  1845),  p.  ni2,  a  case  of 
felony,  a  juror  was  taken  sick  and  had  to  be  removed  after  part  of  tho  evi- 
(lonco  for  the  prosecution  had  been  received.  Sir.  Justice  Creswell  there- 
upon required  a  pliysician's  testimony  as  to  the  juror's  inability  to  continue 
on  duty,  and  then  had  another  man  sworn  in  his  place.  The  prisoners  were 
allowed  their  challenge,  and  tliose  witnesses  who  had  been  already  exam- 
ined were  again  called  and  sworn,  and  the  judge  read  to  each  his  own  note 
(if  tho  witness'  evidence  and  had  Ixim  state  whether  it  was  correct.  3  West. 
Law  Journal,  95. —  [Rep. 


Adams  v.  The  State. 

(99  Ind.,  244.) 

Jeopaudy  :  Disclmrging  jury  —  Release  of  prisoner. 

Where,  after  the  impaneling  and  swearing  of  a  jury,  it  is  ascertained  that 
a  juror  is  incompetent  to  act  as  such  on  account  of  not  being  a  free- 
holder or  a  householder,  and  the  accused  refuses  to  object  to  the  juror, 
and  the  court  thereupon,  of  its  own  motion,  discharges  tho  jury,  the  ac- 
cused has  been  once  in  jeopardy  and  should  be  released. 


310 


AMERICAN  CRimNAL  REPORTS. 


J.  0.  Branyan,  M.  L.  S^encei',  B.  A.  Kaufman  and  TF.  A. 
Branyan,  for  appellant. 

G.  W.  Gibson,  ])rosecuting  attorney, «/.  lu.  Il'ddebrand  and 
61  IF.  Wat /i- ins,  for  the  state. 

NiRLACK,  J.  This  was  a  prosecution  by  indictment  ac^ainst 
Joseph  J,  Adams,  under  section  2204,  K.  S.  1881,  for  selling  a 
promissory  note  to  the  Citizens'  Bank  of  Huntington,  at  Hunt 
ington,  Indiana,  knowing  that  one  of  the  signatures  to  tlie  noto 
had  been  obtained  by  false  pretenses.  Upon  a  former  a])])oal 
to  this  court  the  indictment  was  held  to  bo  sufficient,  and  tlio 
judgment  below  quashing  it  was  reversed.  iSuiie  v.  Adams,  92 
Ind.,  116. 

After  the  cause  had  been  remanded,  and  issue  had  been 
formally  joined  by  the  entry  of  a  plea  of  not  guilty,  a  panel 
of  jurors  was  called  to  try  it.  A  man  known  as  Luther  f 'ran- 
dall  was  one  of  'he  persons  tlnis  called  to  serve  as  jurors  in 
the  cause.  Crandall  was  not  specially  interrogated  as  to  his 
qualifications  as  a  juror,  but  others  called  with  him  were  so 
interrogated  in  his  ])resonco  and  hearing.  Before  tlio  jury 
were  sworn  the  court  iufpiired  whether  all  were  cithei'  free- 
holders or  householders  of  the  county,  to  wliicli  there  was  a 
general  response  in  the  affirmative.  After  the  jury  were  sworn, 
but  before  any  statement  of  the  case  had  been  made  to  them, 
and  before  any  further  proceedings  of  any  kind  had  been  had, 
Crandall  informed  the  court  that  he  had,  by  inadverten(".\  in- 
correctly answered  the  court's  inquiry  as  to  some  of  his  ([iiali- 
fications  as  a  juror;  that  he  wr.s,  in  fact,  neither  a  freijholder 
nor  a  householder.  The  court  then  inquired  of  the  defendant 
whether  he  objected  to  Crandall  as  a  juroi'  on  account  of  tlie 
information  which  he,  Cran(hill,  had  thus  communicated  to  tlio 
court,  to  which  the  defendant,  tlirough  his  attorneys,  responded, 
"We  decline  to  change  the  jury."  The  court,  thereupon,  over 
the  objection  and  exception  of  the  defendant,  discharged  tlio 
jury.  The  defendant  then  moved  tliat  lie  be  discharged  and 
permitted  to  go  hence  witliout  day,  upon  the  ground  that  he  had 
once  been  jdaced  in  jeoj)ardy,  and  that  ho  ought  not,  for  that 
reason,  to  bo  longer  held  to  answer  the  charge  which  a  jury 
had  been  imjjaneled,  as  above,  to  try.  But  the  court  ovci- 
ruled  the  motion  and  proceeded  to  impanel  another  jury  to  ti'V 


ADAMS  r.  THE  STATE. 


311 


the  cause,  which  resulted  in  finding  the  defendant  guilty  as 
cluirgcd,  and  in  sentencing  him  to  the  state's  prison  for  a  term 
of  two  yt?ars. 

It  is  a  well  settled  rule  that  all  objections  to  the  competency 
of  a  juror  are  waived  by  neglecting  to  use  due  diligence  in 
urging  them,  as  well  as  b}'  the  failure  of  the  party,  afterward 
complaining,  to  avail  himself  of  such  objections  at  the  proper 
time,  after  they  have  come  to  his  knowledge.  Kingoi  v.  State, 
M\  Ind.,  lo2;  (jIIooJoj  v.  State,  .58  Ind.,  1S2;  Pattemjn  v.  State, 
70  Ind.,  ;541;  I  IJishop,  Crim  Proc,  sec.  040. 

That  rule  applies  especially  to  that  class  of  disqualifications 
whicli  arise  from  a  jiroposed  juror  not  being  either  a  freeholder 
or  liouseholdcr  or  a  voter  of  tiie  county.  It  is  al;u)  well  settled 
tliat  when  tlie  ordinary  forms  of  law  have  been  complied  with, 
jeopardy  attaches  whon  the  jury  are  swoi'n.  1  Bishop,  Crim. 
Law,  sec.  lol-i;  I  Bishop,  Crim.  Proc,  sec.  901;  Muden  v.  Em- 
moiist,  So  Ind.,  ;531. 

When  jeopardy  has  begun,  and  the  jury  are  unnecessarily 
and  witliout  tlio  consent  of  tlie  ])risoner  discharged,  such  dis- 
charge of  the  jury  is  e(]uivalont  to  an  accpiittal,  and  the  pris- 
oner thereby  becomes  entitled  to  exemption  from  further 
prosecution  for  the  same  olfense.  Wn'(//it  v.  State,  5  Ind.,  200; 
Wt'i(jht  V.  State,  7  Ind.,  324;  Maden  v.  I'Jinmoufi,  .sapra. 

On  that  subject  Bishop,  in  his  work  on  Criminal  Law,  vol.  1, 
section  1037,  says:  "  The  general  doctrine,  let  it  be  repeated,  is, 
that  if,  after  the  jeopardy  already  explained  has  attached,  the 
jndge  discharges  the  jury  without  the  prisoner's  consent,  the 
prisoner  is  entitled  to  be  set  at  liberty,  and  he  is  not  to  be  again 
l)rought  into  danger  for  the  same  olfense." 

As  deducible  from  the  authorities  herein  above  cited,  Adams, 
the  apjiellant  in  this  case,  waived'  all  objections  in  the  first  in- 
stance to  Criwulall's  (pialifications  as  a  juror  by  failing  to  make 
any  incpiiry  upon  the  subject  at  the  proper  time,  and  when  the 
action  afterwards  taken  by  the  court  resulted  in  bringing  out 
the  fact  that  Crandall  was  neither  a  freeholder  nor  a  house- 
holder, he  still  nuido  no  objection  on  that  account.  In  all  such 
proceedings  a  failure  to  object  is  construed  as  implying  con- 
sent, and  the  declination  of  the  appellant  to  "  change  the  jury  " 
ought,  under  the  circumstances,  to  have  been  interpreted  as 
meaning  that  ho  was  willing  to  proceed  Avith  the  jury  as  it  was 


:}12 


AMERICAN  CRIMINAL  REPORTS, 


then  constituted.  There  was,  consequently,  no  sufficient  cause 
for  discharging  the  jury  at  tiie  time  it  was  discliarged,  and 
the  action  of  the  court  in  that  respect,  having  been  without 
the  consent  of  tlie  appellant,  either  express  or  implied,  was  the 
equivalent  of  an  acquittal  of  the  offense  which  the  jury  were 
impaneled  to  try. 

It  follows  that  the  court  below  erred  in  overruling  the  apjKjl- 
hmt's  motion  for  his  discharge  from  his  arrest  upon  the  indict- 
ment against  him,  and  that  all  subsequent  proceedings  based 
upon  that  indictment  were,  in  consequence,  erroneous. 

The  judgment  is  reversed,  and  tlie  cause  remanded  with  in- 
structions to  the  court  below  to  discharge  the  appellant. 

The  clerk  will  give  the  necessary  notice  for  the  return  of  the 
prisoner  to  the  custody  of  the  sheriff  of  Huntington  county. 

Note. — In  Alexander  v.  Com.,  lOl  Pa.  St.,  1,  after  the  names  of  forty- 
iiino  jurors  had  been  (h-awn  from  the  box,  which  had  contained  sixty,  and 
«ight  juror.s  had  been  separately  sworn,  it  appoiued  tliut  eleven  of  the  pajjer 
pellets  had  b  jen  clandestinely  removed ;  whereupon  the  court  directed  the 
clerk  to  prepare  eleven  jjcllets  in  place  of  those  which  had  been  renioveiJ, 
and  aj^ain  put  all  the  pellets  in  the  box;  and  furtlier  ordered  that  the  draw- 
ing of  the  jury  bo  commenced  de  novo.  It  was  held  that  the  prisoner  was  not 
in  jeopardy  at  the  time  of  making  the  order.  "  The  trial  begins  when  the 
jury  is  charged,  with  the  defendant,  and  that  is  at  the  moment  a  full  jury 
is  impaneled  and  sworn ;  he  is  not  in  jeopardy  before.  Up  to  that  i)oint  the 
court  may  postpone  the  trial  as  lawfully  at  one  stage  of  the  proceedings  as 
another.  A  man  is  not  in  peril  from  the  verdict  of  a  jury  till  the  full  num- 
ber are  qualified  to  harken  unto  the  evidence  and  make  deliverance." 


The  Puople  v.  Casey. 

(96  N.  Y.,  115.) 

Juror:   Qualifications  of,  ttndo' code. 

1.  Under  code  practice,  as  formerly,  juror  must  declare  on  oath  that 
HIS  verdict  will  not  be  ixpluen'ced  by  preconceived  opinion.— 
Under  the  Code  of  Criminal  Procedure,  370,  a  man  who  has  formed  or 
expressed  an  opinion  in  reference  to  the  guilt  or  innocence  of  the  defend- 
ant is  still,  as  formerly,  disqualified  to  sit  as  a  juror,  unless  ho  declares 
on  oatli  that  ho  believes  such  opinion  will  not  influence  his  verdict,  and 
that  he  can  render  an  impartial  verdict  in  accordance  with  the  evidence. 
It  is  not  sufficient  to  suppose  merely  that  ho  can  determine  the  ca.se 
according  to  the  evidence,  or  tlmt  his  opinion  ought  not  to  influence  \m 
verdict. 


THE  PEOPLE  V.  CASEY. 


313 


8.  Same. —  Uiwn  the  trial  of  an  indictment  for  murtlcr,  a  man  called  as  a 
juror,  and  challenged  for  bias,  testified  that  ho  had  formed  and  expressed 
an  opinion  as  to  the  prisoner's  guilt;  that  ho  supposed  ho  would  have  to 
determine  tho  cjiso  according  to  tho  evidi;nce,  and  wouUl  have  to  go 
accxirduig  to  the  witnesses,  but  that  ho  still  hatl  an  opinion  which  would 
go  with  him  into  the  jury  box,  and  this  he  could  not  get  out  of  his  mind ; 
that  he  could  not  help  it;  and  tiuit  it  might  assist  in  influencing  his  ver- 
dict. To  a  (|uc3tion  as  to  whether  he  would  give  liis  verdict  in  accordance 
with  tho  testimony  of  tho  witnesses,  ho  did  not  reply.  The  challenge 
wiis  overruled.     Held,  error ;  and  that  the  juror  was  disqualilied. 

3.  Sami:. —  Another  juror  testilied  that  he  had  heard  and  read  about  the  case, 

and  had  formed  and  expressed  an  opinion  and  still  held  it.  He  was  then 
asked  if,  notwithstanding  such  opinion,  lie  could  sit  as  a  juror  and  deter- 
mine the  case  upon  the  evidence.  To  this  he  answered,  "  Well,  I  sup- 
pose I  could."  Held,  that  tliis  was  not  a  responsive  answer,  and  that 
the  juror  was  incompetent. 

4.  Same. — Another  juror  stated  that  ho  had  formed  and  expressed  and  still 

entertained  an  opinion,  and  that  he  would  go  into  tho  jury  box,  if 
accepted,  witli  a  prejudice  in  his  mind,  which  it  would  require  evidence 
0  remove.  He  was  tiien  iisked  if  tho  impression  lie  had  would  at  all 
biitipe  or  influence  his  verdict.  Ho  answered,  "  Well,  I  would  go  accord- 
ing to  the  e^  Idenco."  Ho  was  iiskcd  again  if,  apart  from  the  evidence, 
his  previously  formed  impression  or  prejudice  would  aid  at  all  in  shap- 
ing and  forming  his  verdict.  He  answered,  "  Well,  I  dun't  know  that  it 
would."  Ho  wiis  then  asked,  "Are  you  sure  tiiat  it  would  not  V"  He 
answered,  "No,  1  am  not  sure  about  that."  Held,  that  it  was  error  to 
overrule  the  challenge. 

5.  Sami;. —  Another  juror  who  declared  that  ho  had  foriiKnl,  expressed,  and 

still  lield  an  opinion,  wiis  asked  if,  notwithstanding  this,  he  could,  as  a 
juror,  determine  the  cixso  according  to  tho  evidence.  He  answered, 
"  Yes,  I  suppose  I  could."    The  challenge  was  overruled.     Held,  error. 

6.  Same. —  All  of  said  jurore,  after  the  court  had  ruleil  that  they  were  com- 

petent, were  challenged  peremptorilj-  ;uid  excluded  from  tlie  panel.  It 
ai)peared  that  before  the  jury  was  fully  impaneled  all  of  tlie  peremptory 
challenges  allowed  defendant  by  law  were  exhausted.  Held,  that  as  by 
the  erroneous  rulings  he  was  obliged  to  uso  his  penniiittory  challenges, 
and  was  thus  deprived  of  the  right  to  cliallongo  other  jurors,  he  was 
injured,  and  was  entitled  to  a  reversal. 

Appeal  from  judgment  of  the  general  term  of  the  supreme 

COVU't. 


Eakl,  J.  The  defendant  was  put  upon  his  trial  for  the  crime 
of  murder,  and  interposed  challenges  for  actual  bias  to  several 
persons  who  were  called  to  act  as  jurors,  which  his  counsel  now 
claims  were  improperly  overruled. 

The  Code  of  Criminal  Pi'ocedure,  section  370,  provides  that 
"the  previous  expression  or  fornuition  of  an  opinion  or  im- 


3U 


AMERICAN  CRIMINAL  REPORTS. 


prossion,  in  rcforonco  to  the  guilt  or  innoccnco  of  the  dcfoiul- 
ant,  or  a  ])resent  opinion  or  im[)ression  in  rcforonco  tlieroto,  is 
not  a  suliicicnt  <^T(>nn{l  for  challenge  for  actual  bias  to  any  per- 
son otliovwise  legally  qualilied,  if  he  declare  on  (uilJi  tliat  he 
believes  that  sucli  opinion  or  impression  will  not  inllueiu'o  liis 
verdict,  and  that  he  can  render  an  ini])artial  verdict  according 
to  the  evidence,  and  the  coui-t  is  satisliod  that  he  does  not  en- 
tertain such  a  pi'oscnt  opinion  or  impression  us  wouhl  inlhicnce 
his  verdict."  That  provision  is  substantially  a  re-enactuuMit  of 
soction  1  of  the  act,  chapter  i75  of  the  laws  of  iSTi*.  Not- 
withstanding the  in'ovision,  a  person  who  has  foriiictl  or  ox- 
pressed  an  oi)inion  or  impression  in  reference  to  the  guilt  or 
innocenc;^  of  the  dolendant  is  still,  as  formerly,  distpialilicd  to 
sit  asa  juror,  uidess  three  things  shall  concur:  (1)  lie  must  de- 
clare on  oalh  that  he  believes  that  such  opinion  or  im})vo.ssion 
will  iu)t  inllucnce  his  verdict;  (i^)  he  must  also  declare  on  oalh 
that  he  helices  he  can  render  an  impartial  verdict  according 
to  the  evidence ;  and  (.'5)  the  court  must  be  satisfied  that  ho  docs 
not  entertain  such  a  prcrsent  opinion  or  hnpression  as  would  in- 
fluence his  verdict.  I'ldess  these  three  things  concur  thu  per- 
son must  now,  as  before,  be  excluded  from  the  jury  box. 
Bulho  V.  P,i>i>h\  SI)  X.  Y.,  481;  C(m  v.  JVydc,  id.,  noi);  /'.•nj>I(' 
V.  Coi'ne/f/\  [)'2  id.,  85.  The  cases  cited  also  hold  that  the  de- 
cision of  the  trial  judge  in  such  a  case,  overruling  the  challenge, 
is  reviewable  in  this  court,  and  that  it  is  our  province  and  duty 
to  determine,  upon  the  evidence  elicited  by  the  examination  of 
the  person,  whether  or  not  he  was  a  comi)etent  junn*. 

Charles  Diividson  was  called  as  a  juror,  and  upon  his  examina- 
tion testilied  that  he  had  heard  and  read  about  the  case;  that 
what  he  had  read  left  an  imj)ression  on  his  mind,  for  or  against 
the  defendant;  that  he  had  talked  the  case  over  with  his  neigh- 
bors; that  in  conversation  with  them  he  had  ex])re;sso(l  un 
opinion  in  reference  to  the  guilt  or  innocence  of  the  defendant; 
that  he  still  had  the  opinion  thus  expressed,  and  that  he  wiis 
pretty  sure  he  had  said  that  he  thought  the  defeiulant  \v;u-; 
guilty.  This  question  was  ])ut  to  him  by  the  district  attorney: 
"Notwithstanding  that  you  have  heard  or  read  of  it,  or  niaV 
have  formed  or  expressed  an  opinion  or  impression,  can  you  sit 
as  a  juror,  if  selected,  and  determine  this  case  upon  the  evi- 
dence as  you  shall  hear  it  from  the  witnesses  ? "  and  he  an- 


THE  PEOPLE  V.  CASEY. 


315 


gwcred :  "  'Well,  I  suppose  I  could."  The  court  ruled  that  ho 
wiis  a  ^ood  juror.  .lamos  Waldron  was  culled  as  a  juror,  and 
tcstilicil  upon  his  cxauiiuiition  that  ho  liad  heard  and  read  of 
tlio  c'as(%  and  formed  an  opinion  or  iin})i'ession  in  reference  to 
it;  and  then  the  district  attorney  asked  him  this  (juestion: 
"Notwitlistandinj^  tliat,  couUl  you,  in  your  opinion,  sit  here 
as  a  juror  and  determine  it  entirely  upon  the  evidence  in  the 
cascT'  and  he  answered:  "Yes."  Tpon  his  cross-examina- 
tion ''e  testified  that  he  liad  read  in  tlie  newspapers  a  criticism 
11}  disscntini.;'  juror  upon  a  previous  trial;  that  he  had 

f(,.,  .1  distinct  impressicm  as  to  the  guilt  or  innocence  of  the 
(lot'cn(hint;  that  he  still  iiad  that  impression;  that  it  wouhl  re- 
(luire  evidence  to  remove  it ;  and  that  he  would  go  into  the 
jury  hox,  if  acc{'])ted  as  a  jm-or,  with  a  prejudice  in  his  mind, 
as  the  result  of  the  newspaper  reading  and  the  iulverse  criti- 
cism that  he  liad  seen  in  the  public  press.  lie  was  asked  this 
(iuesti(jn;  "Would  that  dellnite,  distinct  impression  that  you 
have  in  your  mind,  would  it  shape  or  shadow  your  verdict  at 
all.' "  and  he  aunwered :  "  Well,  I  would  go  according  to  the  evi- 
dence, 1  think."  There  were  further  (ju<!stions  and  answers  as 
follows:  Q.  "•  A])art  from  the  evidence  as  it  might  he  disclosed 
to  you  on  the  trial,  would  this  previously  formed  impression  or 
prejudice  arising  fi-om  your  newspaper  reading  aid  at  all  in 
shaping  and  forming  your  verdict?"  ^1.  "  Well,  I  don't  know 
that  it  would."  Q.  ''Are  you  sure  that  it  would  not?"  A. 
"No,  sir;  1  am  not  sure  about  that."  Q.  "  And  the  impression 
that  you  had,  after  thinking  this  matter  all  over,  after  reading 
the  newspaper  articles,  and  after  the  conversation  that  you  had 
had  with  your  neighbors,  was  a  distinct  impression,  is  with 
you  yet,  and  it  would  go  with  you  into  the  jury  box,  and  you 
think  might  change,  shade  or  shadow  the  verdict  which  you 
would  give  on  the  evidence?"  A.  "Well,  it  might,  but  it 
hadn't  ought  to.''  Q.  "But  you  say  that  it  might;  you  are 
not  sure  that  you  could  divest  your  mind  entirely  of  that  prej- 
udice?" A.  "Xo,  sir.'t  The  court  sustained  the  competency 
of  the  juror.  Warren  Willis  was  called  as  a  juror,  and  upon 
his  examination  testified  that  he  had  heard  and  read  of  the 
case,  and  this  question  was  jnit  to  him  by  the  district  attorney : 
"Notwithstanding  that  fact,  could  you  determine  it  according 
to  the  evidence  if  selected  as  a  juror  ? "  and  he  answered :    "  I 


310 


AMERICAN  CRIMINAL  REPORTS. 


suppose  I  could."  Q.  "  That  is  your  opinion,  is  it,  that  vou 
could  ? "  A.  "  Yes,  I  suppose  I  could."'  lie  was  then  cross- 
examined  by  the  defendant's  counsel,  and  ttjstilied  that  ho  Jiad 
read  accounts  of  the  homicide  in  newspapers,  and  then  ho  uas 
(questioned,  and  answered  as  follows :  Q.  "  Did  the  result  of 
your  newspaper  reading,  or  of  any  conversation  that  you  mitrht 
have  had  with  any  person,  make  any  distinct  impression  on 
your  mind  concerning  the  guilt  or  innocence  of  the  accused?" 
A.  "  Yes,  sir."  Q.  "That  impression  is  with  you  jet,  is  it?" 
^1,  "  Yes,  sir;  I  think  it  is."  Q.  "  In  addition  to  the  formation 
of  an  opinion,  did  you  express  any  opinion  as  to  the  guilt  or 
innocence  of  the  prisoner?"  A.  "Yes,  sir;  I  did,  here  in  the 
court-room."  Q.  "Did  you  say  you  thought  the  defendant 
Avas  guilty,  or  words  to  tiiat  effect?"  A.  "  I  might."  Q.  "  You 
did  make  that  statement?"  A.  "  Yes,  sir;  I  think  he  is  guilty, 
from  what  I  read."  Q.  "I  am  not  asking  what  you  think;  I 
ask  you  Avhether  you  said  so?"  ^.1.  "  Yes,  sir;  I  thinlc  I  have 
sjiid  so." 

The  court  sustained  the  competency  of  the  juror. 

Isaac  Johnson  was  called  as  a  juror,  and,  upon  his  examina- 
tion by  the  district  attorney,  testified  that  ho  had  heard  about 
the  case,  and  had  an  impression  about  it.  These  questions  were 
then  put  to  him,  and  answered :  Q.  "  Could  you  sit  there  as  a 
juror,  and  determine  it  according  to  the  evidence  in  the  case 
without  regard  to  anything  that  you  may  have  heard  outside  ? " 
^1.  •'  Well,  according  to  what  I  have  heard  outside,  I  have  my 
mind  about  made  up,  I  suppose."  Q.  "  Notwithstanding  that 
fact,  that  your  mind  is  about  made  up,  could  you  sit  there  as  a 
juror  and  determine  it  entirely  from  the  evidence  which  you 
would  hear  in  the  trial  ? "  A.  "  I  suppose  I  would  have  to." 
Q.  "  AVithout  any  regard  to  what  you  liavc  heard  outside?" 
^1.  '*  I  suppose  I  would  have  to  go  according  to  the  witnesses, 
of  course."  Q.  "  And  you  would  do  it,  wouldn't  you  ? "  (No 
answer.)  Upon  his  cross-examination  he  tcstilied  that  he  had 
had  conversation  about  the  homicide  with  other  people;  tluit 
there  was  an  expression  of  opinion  on  the  part  of  the  other 
})eople  about  it;  that  he  concurred  with  them;  that  the  way 
ho  heard  the  story,  it  seemed  to  him  that  the  defendant  was 
guilty ;  that  he  so  stated,  and  that  he  was  still  a  good  deal  of 
that  opinion.     Q.  "  Was  that  opinion  to  the  effect  that  the  do- 


THE  PEOPLE  1-.  CASEY. 


317 


fendant  was  guilty  of  the  offense?"  A.  "It  was."  Q.  "  You 
havecxprcssetl  your  opinion  then?"  A.  "Yes,  sii'."  Q.  "You 
are  of  the  same  opinion  now?"  A.  "Yes,  sir."  Q.  "If  you 
were  now  accepted  as  a  juror  in  this  case,  would  you  take 
your  seat  in  this  box,  having  that  opinion  still  in  your  mind?". 
A.  "Well,  it  would  be  still  in  my  mind  —  I  could  not  get  it 
out."  Q.  "  Would  that  impression  be  in  your  mind  during  the 
progress  of  the  trial? "  A.  "  It  would  still  be  in  my  mind,  sir; 
I  could  not  help  it."  Q.  "  You  could  not  help  it ;  and  would 
that  opinion  assist  in  framing  or  inducing  you  to  frame  your 
verdict?"  A.  "It  might,  sir;  I  could  not  say  about  that." 
Q.  "  It  might  tinge  your  opinion?"  A.  "It  might  change  my 
opinion."  Q.  "  And  assist  in  the  formation  of  your  verdict? " 
A.  "  It  might,  sir." 

The  court  held  that  the  juror  was  competent. 

It  will  be  perceived  that  not  one  of  these  persons  testified 
that  he  believed  that  the  impression  or  opinion  he  had  formed 
would  not  influence  his  verdict,  or  that  he  could  render  an  im- 
partial verdict  according  to  the  evidence.  While  the  juror 
Johnson  stated  that  he  supposed  he  woiild  have  to  determine 
the  case  according  to  the  evidence,  and  that  he  would  have  to 
go  according  to  the  witnesses  (by  all  of  which  he  evidently 
meant  tliat  that  would  be  his  duty),  yet  he  testified  that  he 
had  an  opinion  which  would  go  with  him  into  the  jury  box, 
whicli  he  could  not  get  out  of  his  mind;  that  he  could  not 
help  it;  that  it  might  assist  in  forming  his  verdict,  and  he  met 
with  silence  the  question  whether  he  would  go  according  to 
the  witnesses.  Such  a  person  is  clearly  incompetent  to  sit  as 
a  juror.  It  would  be  grossly  unfair  and  unjust,  and  against 
all  the  traditions  of  our  race,  to  compel  any  person  to  go  to 
trial  before  a  juror  in  such  a  frame  of  mind.  It  is  the  object 
of  the  laws,  so  far  as  possible,  to  obtain  impartial,  unbiased, 
fair-minded  men  for  jurors,  who  can  divest  themselves  of  all 
previous  impressions  and  try  a  case  submitted  to  them  upon 
its  merits  and  decide  it  according  to  the  evidence.  It  is  clear, 
therefore,  that  he  should  have  been  held  incompetent  to  sit  as 
a  juror. 

The  other  jurors  named  were  not  so  clearly  incompetent; 
but  they  had  all  formed  and  expressed  opinions  as  to  the  guilt 
of  the  defendant,  and  their  answers  were  not  such  as  to  qualify 


318 


AMERICAN  CRIMINAL  REPORTS. 


them.  It  is  impossible  to  say  upon  their  cvidenco  tliat  they 
were  impartial  jurors,  who  could  fairly  sit  in  jndgmeut  upon 
the  defendant.  AVhen  persons  called  to  sit  as  jurors  are  otlior- 
wise  incompetent  from  actual  bias,  they  must  be  required  to 
make  the  declarations  specified  in  tlie  section  of  tlie  code 
quoted.  They  need  not  malce  those  declarations  literally,  but 
they  must  make  them  in  substance;  that  is  an  absolute  pre 
requisite;  and  then  if  there  is  nothiu*^  in  their  further  exam- 
ination materially  impeaching  such  declarations,  the  court  inav 
receive  them  as  jurors,  if  satisfied  that  their  opinions  and  im- 
pressions will  not  influeuce  their  verdict.  These  jurors  did 
not  literally,  nor  in  substance,  make  the  declarations  rccpiircd, 
and  hence  it  was  the  duty  of  the  court  to  hold  them  incom- 
petent for  actual  bias. 

But  these  jurors,  after  the  rulings  of  the  court  that  tlicy 
were  com])etent  to  sit  as  jurors,  were  peremptorily  challenged 
by  the  defendant  and  excluded  from  the  panel;  and  hence  it  is 
claimed  on  the  part  of  the  ])eoplo  that  the  defendant  was  not 
harmed,  and  that  ho  was  thus  dei)rived  of  any  objection  wliicli 
he  would  otherwise  have.  It  is,  however,  admitted  in  the  rec- 
ord, tliat  before  the  jury  was  fully  im])ancled  the  defeiulant 
had  exluiustcd  all  the  peremptory  challenges  allowed  him  by 
law.  lie  was,  therefore,  by  the  erroneous  rulingr  of  the  trial 
judge  in  holding  these  persons  to  be  competent  jurors,  obliged 
to  use  his  peremptory  clmllenges  in  case  he  desired  to.  If, 
{"ifter  Lhe  ])laintiff  had  used  as  many  ])erem])tory  chalh^nges  as 
he  desired,  he  had  not  yet  exhausted  all  his  challenges,  it  could 
Avell  be  said  that  he  had  not  been  harnu?d.  Hut  where,  by  the 
eiToneous  rulings  of  the  court,  a  defendant  is  obliged  to  ex- 
haust his  peremptory  challenges,  it  is  clear  that  ho  is  hai-nied, 
that  his  rights  are  abridged,  and  that  he  has  just  cause  to 
complain. 

This  homicide  Avas  committed  on  the  1 1th  day  of  March, 
1SS8.  On  the  10th  day  of  April  the  defendant  was  indicted. 
On  the  2;>d  d.ay  of  April  ho  was  [mt  u])on  his  trial,  and  the  jury 
disagreed.  The  case  was  much  discussed  in  the  public  press 
and  in  the  comnmnity,  and  there  was  adverse  critiiisni  of  some 
one  or  more  members  of  the  jury,  lie  was  again  put  upon 
his  trial  on  the  21st  day  of  May,  while  the  homicide  and  the 
former  trial  were  still  the  subject  of  much  criticism  and  con- 


THE  PEOPLE  v.  CASEY. 


319 


vci'sation.  Under  such  circumstances  it  can  be  seen  that  the 
defendant's  right  to  challengo  peremptorily  was  of  groat  value 
to  him,  and  it  cannot  be  said  that  rulings  of  the  court  Avhich 
abridged  that  right  were  not  harmful.  In  the  case  of  Burt  v. 
Panjaudy  09  U.  S.,  180,  it  was  held  that  an  error  committed  in 
overruling  an  objection  to  a  juror  as  legally  disqualified  is 
cured  where  it  api)ears  aflirmatively  that  he  was  not  a  member 
of  the  panel  which  tried  the  case,  and  it  does  not  appear  that 
by  his  exclusion  therefrom  the  party's  right  of  challenge  was 
abridged.  JMiller,  J.,  writing  the  opinion  of  the  court,  said: 
'•We  are  of  opinion  that  since  Holmes  did  not  sit  on  the  jury 
no  harm  Avas  done  to  defendant.  The  object  of  both  motions 
was  to  exclude  him  as  one  incompetent  to  sit.  It  is  immatei'ial 
to  the  defendant  how  this  was  Ijrouglit  about.  It  is  possible 
that  if  defendant  had  shown  ailirmatively  that  he  was  excluded 
bv  reason  of  his  peremptory  cluillenge,  and  that  in  doing  so 
the  exei'cise  of  his  right  of  jieremptory  challenge  had  been 
abridged,  the  result  miglit  be  otlierwise.  It  is  sullicient  to  say 
that  tlie  record  docs  not  sliow  tluit  he  was  on  the  jury,  but  in 
fact  that  he  was  not,  or  that  in  getting  rid  of  liim  any  right  of 
defendant  was  abridged  or  lost." 

Jose[)li  1).  Dowd  was  also  called  as  a  juror,  and  upon  his 
examination  he  testified  tliat  he  had  heard  and  read  about  the 
case,  and  this  tpiestion  was  put  to  him :  "  Notwithstanding  what 
you  have  heard  and  read  about  it,  could  you  sit  as  a  juror,  and 
determine  this  case  upon  the  evidenced'  And  he  answered: 
*'Well,  I  sliould,  of  course."  Upon  his  cross-examination,  he 
testilied  tliat  he  luul  read  about  the  case  in  the  newspapers, 
and  tliat  it  Iiad  made  an  impression  upon  him  which  still  re- 
mained; tliat  ho  would  bring  that  impression  into  the  jury 
Ikix,  and  that  he  thought  it  wouhl  reipiire  evidence  to  remove 
it;  that  he  had  expressed  the  opinion  that  tiie  defendant  was 
f,milty  of  murder,  and  that  he  still  had  that  opinion. 

The  court  sustained  the  competency  of  this  juror,  and  he 
was  sworn  and  served  as  a  juror.  A\'e  are  of  opinion  that 
this  juror  was  not  com[)etent.  He  was  not  asked  to  and  did 
not  declare  on  oath  that  his  opinion  or  impression  would  not 
influence  Iiis  verdict,  and  that  lie  could  render  an  impartial 
verdict  according  to  the  evidence,  or  that  he  could  weigh  the 
evidence  impartially,     lie  diil  not  so  declare  in  words  or  in 


320 


AMERICAN  CRIMINAL  REPORTS. 


substance.  Unless  he  did  so  declare,  and  could  so  declare,  he 
was  incompetent,  and  in  the  absence  of  such  a  declaration  he 
should  have  been  excluded.  It  is  not  sufiicient  for  a  juror 
simply  to  declare  that  he  supposes  he  can  determine  the 
case  according  to  the  evidence,  or  that  he  would  go  accord- 
ing to  the  evidence,  or  that  his  opinion  as  to  the  defendant's 
guilt  ought  not  to  influence  his  verdict,  or  that  he  supposes 
that  he  Avould  have  to  go  according  to  the  witnesses.  The  de- 
fendant has  the  right  to  have  the  conscience  and  mind  of  the 
juror  tested  by  a  declaration  under  oath,  not  simply  that  he 
will  be  governed  by  the  evidence,  but  by  declarations  wliich 
chow  that  he  believes  he  is  in  such  a  state  of  mind,  so  free 
from  bias  and  prejudice,  that  he  can  weigh  the  evidence  im- 
partially,'uniuHuencod  bv  any  opinion  or  impression  which  he 
has  formed.  As  said  in  Bacon's  Abridgment  (Juries,  E,  5), 
"  An  honest  but  weak  man  may  be  so  much  biased  as  to  think 
he  goes  by  the  evidence  Avhen  his  affections  add  weight  to  the 
evidence."  IndilTerency  is  one  of  the  common  law  cliaracter- 
istics  of  a  juiy,  and  it  is  inviolably  secured  by  the  constitu- 
tional guaranty  of  jury  trial.  A  party  put  upon  trial  for  a 
crime  has  a  constitutional  right,  by  challenge,  or  in  some  other 
mode,  to  protect  himself  against  a  biased  jury. 

Other  exceptions  taken  during  the  trial  to  rulings  upon 
questions  of  evidence,  and  relating  to  the  cliarge  of  the  judge, 
have  been  brought  to  our  attention.  But  we  do  not  regard 
them  as  important,  and  they  need  not  now  be  considered. 

The  judgment  of  the  general  term  and  of  the  oyer  and 

terminer  should  be  reversed  and  a  new  trial  granted. 

All  concur. 

Judgment  reversed. 


Drake  v.  The  State. 

(08  Ala.,  510.) 

Justice  of  Tinj  peace;  Jurisdiction  of  —  Autrefois  convict. 

1.  Justice  of  the  peace  — Has  no  juuisdiction  until  a  complaint  is 
FILED. — The  power  conferred  on  justices  of  the  peace  to  hear  and  dotor- 
mine  prosecutions  for  misdemeanors  cannot  bo  quickened  into  activity 
until  a  complaint  is  made  —  until  a  cose  is  presented  he  cannot  cxcrclso 
jurisdiction. 


DRAKE  V.  THE  STATE. 


321 


Plea  of  guiltt  when  no  complaint  is  made  no  bar  to  prosecution. — 
A  iKirty  knowing  himself  guilty  of  a  misdemeanor,  who  becomes  his 
own  prosecutor,  selects  his  own  judge,  confesses  his  guilt,  and  submits 
to  a  judgment  entered  upon  such  a  confession,  cannot  escape  prosecution 
in  the  appointed  mode  by  pleading  a  former  conviction  brought  about 
under  such  circumstances — such  judgment  of  conviction  is  a  nullity. 


From  County  Court  of  Madison.  Tried  before  Hon.  William 
Richardson,  Judge. 

John  D.  Weid^n,  for  appellant. 

IT.  C.  Tompkins,  attorney-general,  for  the  state. 

Bbickell,  C.  J.  The  appellant  was  indicted  in  the  circuit 
court  of  Madison  county,  tlie  indictment  containing  two  counts ; 
the  first  charging  gaming,  the  offense  denounced  by  the 
statute  (Code  of  1876,  §  4207);  the  second  charging  the  offenge 
of  hotting  at  a  game  of  cards  or  dice,  or  at  a  gaming  table, 
etc.,  denounced  by  the  statute  (Code  of  1870,  §  ■i'2'Jd).  The  in- 
dictment, under  the  statute  organizing  the  county  court  of 
Madison  county,  was  transferred  from  the  circuit  court  to 
that  court  for  trial.  The  appellant  interposed  a  plea  of  former 
conviction,  before  a  notary  public  and  ex  ojlcio  justice  of  the 
peace.  The  plea  averred  that,  on  the  0th  day  of  February, 
1882,  the  defendant  was  by  the  notary  convicted  of  the  offense 
charged  in  the  indictment,  and  set  out  tlie  record  of  the  pro- 
ceedings and  judgment;  from  which  it  appears  that,  on  the  0th 
(lay  of  February,  1882  (the  first  day  of  the  term  of  the  circuit 
court  at  which  the  indictment  was  found),  the  defendant  ap- 
peared before  the  notary  public,  without  complaint  having  been 
made,  or  process  issued  against  him,  and  stated  that,  within 
the  preceding  twelve  months,  he  had  at  a  particular  place, 
within  the  county  of  Madison,  violated  four  different  times  the 
statute  against  gaming,  and  the  statute  against  betting  at  a 
f^anie  of  cards  or  dice,  etc.,  but  the  particular  times  or  occa- 
sions he  could  not  remember.  To  such  violations  of  the  statute 
he  pleaded  guilty,  and  the  justice  sentenced  him  to  pay  a  fine 
of  i^loo.  The  state  demurred  to  this  plea;  the  solicitor  speci- 
fying, as  the  sole  ground  of  demurrer,  "  that  the  plea  does  not 
show  that  there  ever  was  a  legal  conviction  of  the  defendant 
in  any  court  of  the  state  of  Alal)iinui  authorised  to  try  such 
cuses."  The  demurrer  was  sustained;  a  trial  was  had  on  the 
Vol.  IV  — ',»! 


322 


AMERICAN  CRIMINAL  REPORTJ 


plea  of  not  f^uilty,  and  there  was  a  verdict  of  guilty  as;;or)3in" 
a  fine  of  $100  against  the  defendant,  upon  which  judgnioat 
was  rendered. 

The  constitution  authorized  the*  general  assembly  to  confer 
jurisdiction  of  prosecutions  of  misdemeanors  on  justices  of  tlio 
peace,  or  such  other  inferior  courts  as  may  be  established  by 
law,  dispensing  with  the  presentment  of  a  grand  jury.  By  an 
act  approved  February  8,  1877  (Pamj)!!.  Acts  1S7C-7,  p.  107), 
justices  of  the  peace  in  ^ladison,  and  several  other  counties, 
were  clothed  with  original  jurisdiction,  concurrent  with  that  of 
the  circuit  court,  of  all  misdemeanors  committed  in  the  comity. 
It  is  expressly  provided,  however,  that  all  proceedings  under 
the  act  must  conform  to,  and  bo  governed  by,  the  general  stat- 
utory provisions  embodied  in  the  code  regulating  proceedings 
in  criminal  proceedings  before  justices  of  the  peace.  The  sub- 
stance of  these  proceedings  is,  first,  a  com])laint  on  oath, 
charging  the  person  accused  of  an  offense  of  which  the  jn:;tico 
had  jurisdiction.  This  is  the  first  step  taken  in  the  initiation 
of  the  prosecution,  and  it  must  be  taken  before  the  jurisdiction 
of  the  justice  can  be  called  into  exercise.  The  power  con- 
ferred on  the  justice  is  the  power  residing  in  the  circuit  court. 
It  is  power  to  hear  and  detei-mine  prosecutions  for  misde- 
meanors. The  power  cannot  be  quickened  into  activity  until 
a  complaint  is  made  —  until  a  case  is  presented,  bringing  it 
into  exercise.  The  power  to  hear  and  determine  a  cause  is  juris- 
diction. "Before  the  power  can  bo  ailirmed  to  exist,  it  nnist 
be  made  to  appear  that  the  law  has  given  tlie  tribunal  capiicity 
to  entertain  the  complaint  against  the  person  and  tiling  sought 
to  be  charged  or  affected;  that  such  complaint  has  iu-tuiilly 
been  preferred ;  and  that  such  ])erson  or  thing  has  been  biouglit 
properly  before  the  tribunal  to  answer  the  charge  tlicrcin  con- 
tained." Sheldon  v.  Newton,  3  Ohio  St.,  480.  It  cannot  bo 
admitted,  for  a  moment,  that  the  constitution  or  statutes  con- 
template sucli  a  proceeding  as  that  now  relied  on  as  a  bar  to 
this  indictment;  that  a  party,  knowing  himself  guilty  of  a 
misdemeanor,  should  become  his  own  prosecutor,  select  liis 
own  judge,  without  notice  to  the  state  or  any  otiicer  authorized 
to  prosecute  in  its  behalf,  confessing  his  guilt,  submitting  to 
judgmont,  and  esca|)e  prosecution  in  the  appointed  mode,  in 
])roce(!dings  in  form  and  effect  adversj'.ry,  in  which  the  state 


MURPHY  V.  THE  PEOPLE. 


S23 


has  tlio  opportunity  of  bein,;j  hoard  and  of  vindicating  its  laws. 
If  the  proceeding  was  civil,  involving  private  rights,  it  would 
not  be  pretended  that  a  plaintiff  could  be  barred  of  his  right 
to  a  fair  trial  in  the  modes  ajjpointed  by  law,  by  the  appear- 
ance before  a  court  and  the  confession  of  judgment  by  tho 
defendant,  of  which  he  had  no  notice,  and  in  tho  rendition  of 
which  lie  haol  no  agency.  The  ])rococding  and  judgment  before 
tlic  notary  were  coram  nonjndlce., —  a  mere  nullity, —  and  can- 
not oi)erate  as  a  bar  to  tho  present  indictment.  State  v.  Little^ 
1  N.  II.,  257. 

The  demurrer  was  properly  sustained,  and  tho  judgment  of 
conviction  must  bo  allirmed. 


MuKPUY  V.  The  Peoplts.  ' 

(104  111.,  528.) 

Larceny:  Fraudnlent  convernion — Joinder  of  counts — Variance — Newly 
discovered  etndence  —  Questioning  competency  of  counsel. 

1.  Larceny  —  Pautino  voluntarily  with  possession  and  title.— If  the 

ownt'v  of  the  goods  alleged  to  have  boon  stolen  parts  with  both  the 
possession  and  tlife  title  to  the  goods  to  the  alleged  thief,  then  neither 
the  taking  nor  the  convei-sion  is  felonious. 

2.  Otherwise  when  the  owner  intends  that  they  shali.  be  returned 

TO  iilM.  etc. —  But  if  the  owner  parts  with  the  possession  volun- 
tarily, Init  <l(!es  not  part  with  the  title,  expecting  and  intending  that 
the  goods  shall  be  returned  to  him,  or  that  they  shall  be  disposed  cf 
on  his  account,  in  u  particular  way,  as  directed  or  agreed  upon,  for 
liis  benefit,  then  the  goods  m  >y  Ik.'  feloniously  converted  by  the  bailee, 
Ko  as  to  relate  back  and  make  the  taking  and  conversion  a  larceny. 

3.  Joinder  op  counts  —  Larceny  and  embezzlement.— Joinder  of  em- 

hozzloment  with  larceny  is  in  accordance  with  the  well-est.ablished 
practice. 

4.  Variance. —  One  C.  entered  a  place  of  business  kept  by  F.  to  make  a 

purcliiuse,  and  handed  a  twenty-dollar  coin  to  F.  for  the  purpose  of 
paying  for  the  article  purchased  by  him  and  receiving  his  change.  P. 
being  unable  t,i  make  the  change  handed  the  coin  to  M.  and  requested" 
M.  to  g.>t  it  changed.  M,  tfM)k  the  coin,  went  out  and  never  returneJ 
with  it  or  the  change.  He'd,  that  the  property  in  tluj  coin  was  properly 
laid  in  C,  as  no  title  «'ver  passed  to  F. 

5.  Newly  DISCOVERED  evidence.— Where  the  la'isoner,  ui)on  a  motion  for 

ii  new  trial,  jiresented  attiilavits  of  persons  wlio  stated  that  the  prisoner 
did.  on  the  day  of  the  alleged  larceny,  nuike  elforts  to  get  "  change"  of 


TT^r.-T^-. 


824 


AMERICAN  CRIMINAL  REPORTS. 


a  certain  coin,  held  not  material,  as  the  offense  charged  was  not  in  fail- 
ing to  get  the  money  "changed,"  but  in  failing  to  return  it,  and  in 
appropriating  it  to  liis  own  use. 
6.  Questioning  competency  of  counsel  assigned  to  defend  an  accused 
PEKSON. —  Wlien  the  court  below  assigns  counsel  for  the  defense  of  an 
accused  person,  it  will  be  presumed  that  he  was  fully  competent  to  dis- 
charge the  duty  assigned  him.  His  competency  cannot  be  made  an 
issue  on  a  motion  for  a  new  trial. 


AVi'it  of  Evi'or  to  the  Circuit  Court  of  "Will  County;  t'ae 
Hon.  J.  McRoberts,  Judge,  presiding. 

Messrs.  Ilaley  <&  O'Donnell  and  Mr.  J.  R.  Flcmders,  for  the 
plaintiff  in  error. 

Mr.  James  McCartney^  attorney-general,  for  the  people. 

Mr.  Justice  Scuolfield  delivered  the  opinion  of  the  court. 

Plaintiff  in  error  and  John  Fay  were  jointly  indicted  for 
the  crime  of  larceny.  They  were  jointly  tried,  and  the  jury 
found  plaintiff  in  error  guilty,  and  Fay  not  guilty.  Judgment 
ivas  entered  upon  this  verdict,  after  overruling  a  motion  for  a 
new  trial,  and  this  writ  is  prosecuted  to  reverse  that  judgment, 
for  several  errors  alleged,  which  we  shall  proceed  to  briefly 
consider. 

First.  It  is  claimed  the  verdict  is  not  sustained  by  the  evi- 
dence. The  undisputed  facts,  as  proved  on  the  trial,  are :  One 
Coskey,  and  a  friend  accompanying  him,  entered  a  saloon  in 
Joliet,  kept  by  Fay,  and  procured  drinks,  and  Coskey,  not 
having  the  exact  amount  of  money  with  which  to  pay  for  the 
drinks,  handed  Fay  a  twenty-dollar  gold  coin.  United  States 
coinage,  for  the  purpose  of  making  "  change."  Fay,  on  look- 
ing over  his  money  on  hand,  said  he  couhl  not  "change"  it, 
and  thereupon  jjushed  the  coin  towards  plaintiff  in  error,  who 
was  at  the  time  standing  by  the  bar,  and  re(|Uostcd  him  to  go 
and  get  tlie  coin  "changed."  Plaintiff  in  error  took  the  coin, 
left  the  saloon,  and  never  returned  or  accounted  for  the  coin. 

The  case  seems,  in  all  its  essential  features,  })rocisoly  hke 
Farrell  v.  The  Peitple^  10  111.,  500.  There  one  Ilennis  gave 
Farrell,  who  was  a  hack-driver,  a  five-dollar  bill  to  1)(> 
^'changed,"  in  order  that  Ilennis  might  pay  Farrell  twenty- 
five  cents.  Farrell  did  not  return  with  the  bill  or  the  "  chang(>." 
This  court  held  he  was  guilty  of  larceny. 


MUKPIIY  V.  THE  PEOPLE. 


325 


In  Weliih  et  al.  v.  The  People^  17  111.,  339  (a  case  similar  in 
the  controlling  principle  to  that  in  the  present  case),  it  was 
said :  "  Where,  as  in  this  case,  the  alleged  larceny  is  perpetrated 
by  obtaining-  the  possession  of  the  goods  by  the  voluntary  act 
of  the  o\vner,  under  the  influence  of  false  pretenses  and  fraud, 
when  the  cases  are  carefully  examined  and  well  understood, 
there  is  no  real  difficulty  in  deducing  the  correct  rule  by  which 
to  determine  whether  the  act  was  a  larceny  and  felonious  or  a 
mere  clieat  and  swindle.  The  rule  is  plainl}"^  this :  If  the  owne?* 
of  the  goods  alleged  to  have  been  stolen  parts  with  both  tho 
possession  and  the  title  to  tho  goods  to  the  alleged  thief,  theu 
neither  the  taking  nor  the  conversion  is  felonious.  It  can  but 
amount  to  a  fraud.  It  is  ol)taining  goods  under  false  pretenses. 
If,  however,  the  owner  parts  with  the  possession  voluntarily, 
but  does  not  part  with  the  title,  expecting  and  intending  that 
the  same  thing  shall  bo  returned  to  him,  or  that  it  shall  bo  dis- 
posed of  on  his  account,  or  in  a  particular  Avay,  as  directed  or 
agreed  upon  for  his  benefit,  then  the  goods  may  be  feloniously 
converted  by  the  bailee  so  as  to  relate  back  and  make  the  tak- 
ing and  conversion  a  larceny.  The  pointed  inquiry  in  such  a 
case  must  always  arise,  did  the  owner  part  with  the  title  to  the 
things,  and  was  the  legal  title  vested  in  the  prisoner?" 

Again,  in  Sthisoti  v.  The  People,  43  111.,  3U7,  the  same  doo- 
trine  was  reiterated.  It  was  there,  among  other  things,  said: 
"If,  however,  the  owner  parts  with  the  possession  voluntarily, 
but  does  not  part  with  the  title,  expecting  and  intending  tho 
same  thing  shall  be  returned  to  him,  or  that  it  shall  be  disposed 
of  on  his  account,  or  in  a  particular  Avay,  as  directed  or  agreed 
upon,  for  his  benefit,  then  the  goods  may  be  feloniously  con- 
verted by  the  bailee  so  as  to  relate  back  and  make  the  talcing 
and  conversion  a  felony,  if  the  goods  \vere  obtained  with  that 
intent." 

This  settles  the  law  in  this  state,  but  analogous  rulings,  else- 
where, may  l)e  found  in  the  following  cases,  referred  to  in 
argument  by  the  attorney-general:  Ba'dei/  v.  The  State,  58 
Ala.,  -ill;  Commonwealth  v.  Barnj,  124  IVIass.,  325;  State  v. 
W/'/h'aninoH,  1  Iloust.  Crim.  C,  155;  State  v.  Anderson,  25 
^linn..  «(»;  People  v.  Abbott,  53  Cal.,  284;  Elliott  v.  CommoTir 
W'd/fh,  12  Ihisii,  176;  Maehw  v.  People,  19  N.  Y.,  127;  Com- 
moinocalfh  r.  I  find,  123  Mass.,  438;  People  v.  McDonald^  43  N- 
Y.,  (}1;  midehmnd  v.  People,  56  id.,  394. 


82C 


AMERICAN  CRIMINAL  UEPOliTS. 


No  mitigjitinj[^  or  cxtcniuiting  circumstance  was  given  in  evi- 
dence, and  no  ground  is  tljerof<>]'o  appaient  upon  which  it  can 
bo  said  the  verdict  is  not  susla'nod  by  tlicevid;>nco.  Tlic  proof 
on  belialf  of  the  prosecution  made  a  case,  and  that  proof  is  in 
-no  manner  overcome  or  impaired  by  countervaihng  proof  on 
behalf  of  phiintiff  in  error. 

SccoaiL  It  is  argued  the  second  count  in  the  in<lictuK;nt  is 
.for  embezzlement,  and  it  is  bad.  Sup})ose  it  is,  the  lirst  count 
is  undoubtedly  good,  and  that  is  sullicient  to  sustain  the  gen- 
eral verdict  of  guilty.  Toicnscnd  v.  The  Penph,^  Scam.,  1)2!); 
iJIolliday  v.  The  People^  4  Gilnj.,  113.  But  if  the  counts  bo  both 
good,  and  wo  tliink  thoy  are,  inar.m'.ich  as  it  is  evidently  but  tho 
Statement  of  tho  same  felony  in  different  forms,  tho  joinder  is 
not  objoctionablo.  L;jom  ct  al.  v.  The  People^  G8  111.,  275. 
Joinder  of  embezzlement  Avith  larcenv  is  in  accordance  with 
the  well  established  })ractic3.  1  Wharton's  Criminal  Law  (Ttli 
ed.),  latter  part  of  section  42t>,  and  cases  I'cferred  to  in  note  v. 

And  it  may  also  bo  pro])ei"ly  here  added,  tho  objection  tliat 
thoro  is  a  varianco  botweon  tho  proof  and  tho  second  coiuit  (if 
it  were  important  to  consider  such  a  (juestion  when  it  docs  not 
f.lso  lie  to  the  first  count)  is  untenable.  The  averment  that  tho 
dolivci-y  was  to  the  piaintilf  in  error  is  literally  su.^taino;!  as 
to  that  act.  Fay  is  to  bo  regarded  as  tho  agent  of  C^jslcc y.  and 
the  rule  applicable  is,  what  tho  principal  docs  by  an  agent  ho 
docs  by  himself. 

Third.  Coanrjol  for  plaintilT  in  error  contend  tlio  property 
tore  was  not  properly  laid  in  the  indictment  as  the  pi-opcrty  of 
Coslcey.  Wo  cannot  yield  our  ar.sont  to  this  view  of  tho  law. 
In  all  tho  cases  before  reforred  to  on  tho  (piestion  of  tho  ciiar- 
acter  of  tho  olfenso  made  out  by  the  un(|uestioned  facts,  a 
contrary  doctrine  is  announced.  Tho  projioty  may  bo  alleged 
in  the  indictment  as  tho  proi)crty  of  the  real  owner,  or  of  any 
person  having  a  special  ])roj)erty  in  it  as  bailco.  2  liussisU  on 
/Crime.'?  (7th  Am.  ed.),  >^'i,  JK);  2  Wharton's  Criminal  Law  (7tli 
cd.),  sec.  1818  ei  seq.  I'ut  clearly  no  titlo  here  pansed  to  plaint- 
iff in  error.  There  was  no  intention  he  should  become  owner. 
lie  was  simply  to  perform  a  duty  in  regard  to  the  juoixMty,— 
*'  change"  it, —  that  is,  convey  it  to  one  who  would  give  what, 
in  popular  language,  is  denominated  "change,"  viz.,  bills,  or 
gold  or  silver  coins,  or  some  of  each,  of  lessc/  denomina- 
tions, in  amount  of  oqu.al  value,  in  exchange  li  r  it.  and  return 


MURPHY  V.  THE  PEOPLE. 


327 


tliia  "cliango"  to  Coskoy.  FiMxtch  v.  Brown,  IC  111.,  7-4, 
cited  juid  relied  upon  l>_v  coimsol  for  a|);)clliint,  doos  not  airecit 
the  (juration.  In  that  case,  Avliat  was  decided  was  simply  that 
a  i>arty  '"  changinj^"  money  for  an  asjent,  supposin;^  him  to  bo 
acting  as  principal,  may  proceed  against  cither  the  a'jfcnt  or 
the  i)rinci[)al,  when  he  discovers  him,  in  the  event  of  a  right  of 
action  growing  out  of  such  "changing"  of  money.  The  agent 
Avas  there  held  liable  because  the  ])rjnci))al  was  not  known  and 
trusted,  but  there  wouhl  not  have  been  the  slightest  objection, 
had  the  party  so  elected,  to  holding  the  real  ])rincipal  liable. 

It  may  bo,  had  this  coin  l)een  alleged  to  have  been  the  prop- 
erty of  Fay,  plaintiff  in  error  could  not  have  objected  to  his 
title,  but  this  furnishes  no  ol)jection  to  the  property  being 
alleged  in  the  real  owner.  In  point  of  fact,  no  title  ever  passed 
to  Kay.  It  was  passed  to  him  just  as  he  passed  it  to  plaint- 
iff in  error,  not  to  invest  title,  but  to  procure  it  to  be  changed 
into  (or,  to  speak  more  accurately,  exchanged  for)  bills  or 
coins,  or  a  combination  of  each,  of  smaller  denominations,  in 
an  aggre  ;'at(5  amount  and  value  equal  to  it,  and  as  to  that  act 
he  was,  legally,  the  agent  of  ( •oskey. 

We  cannot  perceive  that  AVA,*  t'.  The  People,  81  111.,  500,  has 
any  bearing  \\\w\\  the  case.  There  the  indictment  was  for  lar- 
cany  only,  as  at  common  law,  while  here  we  have  a  count  for 
larceny  as  at  common  law,  and  a  count  for  embezzlement,  and 
hence  if  the  proof  su:;tains  either  the  conviction  must  stand. 
B.it  from  the  authorities  cited,  and  what  has  been  said,  it  must 
b^  evident,  we  are  of  opinion,  the  evidence  sustains  the  count 
for  larceny  as  at  common  law. 

The  alHdavits  in  suj)port  of  the  motion  for  a  now  trial  dis- 
close no  sullicient  ground.  Two  of  thom  merely  show  efforts 
of  the  plaintiff  in  error  to  get  money  "  changed" —  v.'hat  money 
is  not  coadusively  shown.  Ikit  even  if  it  were  this  for  tho 
stealing  of  which  he  is  convicted,  that  fact  does  not  even  tend 
to  sliow  his  innocence.  Ilis  offense  is  not  in  failing  to  get  tho 
money  "changeil,"  but  in  failing  to  return  it,  and  in  appropri- 
ating it  to  his  own  use.  Doubtless  his  own  convenience  required 
that  it  b;?  '*  ch;inged."  The  only  other  affidavit  is  that  of  plaint- 
iff in  error  that  he  was  intoxicated,  and.  by  reason  thereof,  ob- 
livious of  all  he  did  in  regard  to  this  money.  Waiving  comment 
upon  some  inconsistencies  and  improbabilities  in  this  allidavit, 


828 


AMERICAN  CRIMINAL  REPORTS. 


"we  deem  it  snfTlcient  to  say,  the  court  below  assignefl  plaintiff 
in  error  counsel  for  his  defense,  who,  wo  must  prcsunio,  was 
fully  competent  to  the  duties  assij^ned  him.  Neither  plaintilf 
in  error  nor  that  counsel  deemed  it  advisable  to  inti'oduco 
plaintiff  in  error,  or  any  other  witness,  to  make  that  proof  upon 
the  trial,  nor  was  a  continuance  aslced  to  ol)tain  evidence  in 
that  regard.  We  cannot  permit  the  competency  of  counsel  to 
defend  j)ersons  charged  with  crime  to  bo  thus  introduced  as  in 
issue  on  motion  for  a  new  trial. 

Perceiving  no  error  in  the  record,  the  judgment  is  affirmed. 

Judijitient  affirmed. 

Note. —  Joinder  of  counts — Larceny  —  Embezzlement, — In  People  v.  De 
Course!/,  01  Cal.,  134,  it  is  lield  that  larceny  and  embezzlement  are  sejjarate 
and  distinct  oiTenses, —  tliat  in  the  case  of  larceny  the  taking  must  be  with 
a  felonious  intent,  but  that  in  embezzlement  the  original  taking  is  lawful, 
and  the  crime  consists  in  the  fraudulent  appropriation  of  property  by  a  per- 
Bon  to  whom  it  has  been  intrusted,  and,  therefore,  it  is  error  to  join  counts 
for  larceny  and  embezzlement  in  the  same  information.  The  decision  wa.s 
based  upon  a  statute  of  that  state  which  provides  "  that  the  indiitnieiit 
must  charge  but  one  offense,  but  the  same  offense  may  be  set  forth  in  dif- 
ferent forms  under  different  counts,  and,  where  the  offense  may  be  com- 
mitted by  the  use  of  different  means,  the  means  may  be  allegeil  in  the 
alternative  in  the  same  count."  In  Iowa  the  statute  is  substantially  the  same 
as  in  California,  with  a,  proviso  "tliat  in  case  of  compound  offenst^s,  whert; 
in  the  same  transaction  more  than  one  olTejiso  luis  been  committed,  the 
indictment  may  charge  the  several  f)ffensea,  and  the  defendant  may  Ihj  con- 
victed of  any  offense  included  therein." 

In  the  case  of  The  State  v.  Hni/den,  45  Iowa,  11,  the  defendant  was  found 
guilty  upon  an  indictment  for  breaking  and  entering  a  store  with  intent  to 
commit  larceny,  and  which  also  alleged  that  the  defendant  did  tal:e,  steal 
and  carry  away  the  goods  described;  the  tourt  held  that  the  indictment 
charged  but  one  offense,  that  of  breaking  and  entering  with  intent,  etc., 
and  that  the  allegation  that  ho  actually  committed  the  larceny  v.onld  be 
regarded  as  surplusage.  It  is  evident  from  the  language  of  the  court  that 
the  indictment  contained  but  one  count,  and  the  motion  in  arrest  was  pro|)- 
erly  overruled,  whatever  the  rule  might  be  on  a  motion  to  quash  the  in- 
dictment. In  the  later  case  of  The  State  v.  Ridley  and  Johnson,  48  Iowa, 
370,  the  indictment  contained  but  one  count,  in  which  it  was  alleged  that 
the  defendants  in  the  night-time  unlawfully,  feloniously  and  burglariously 

did  break  and  enter  the  store  of  one  John  Slatten,  etc with  intent 

then  .ami  there  the  goods,  chattels,  money  and  property  of  the  said  John 
Slatten,  in  the  said  store  then  and  there  being,  then  and  there  unlawfully, 
feloniously  and  burglariously  to  steal,  take  and  carry  away ;  and  two  cad- 
dies of  tobiicco  of  the  value  of  $12  each,  ...  of  the  personal  goods, 
chattels  and  property  of,  etc.,  in  the  siiid  store  then  and  there  being  found, 
then  and  there  unlawfully  and  burglariously  did  steal,  take  and  carry  away, 
etc. 


MURPHY  V.  THE  PEOPLE. 


329 


\* 


Tlio  trial  court  instnictftl  the  jury  tlint  in  the  fuctH  set  forth  in  thn  in«lict- 
nicnt  were  included  the  t-riine  of  liirceny  in  a  Htoro  in  the  nipht-time,  the 
crime  of  brcakin<^  and  entcrinp;  a  store  witli  intent  to  commit  larceny,  and 
the  crime  of  simple  larceny.  The  defendants  were  found  f^iilty  of  larceny 
fioiii  a  Htore  in  the  ni<^l>t-tinu',  and  the  sniiromo  court  reverseil  the  case  on 
tlie  f:;r<mnd  that  hreakin.j;  and  eiitiTinj;  witii  intent  to  commit  larceny,  and 
Inrceny,  were  not  "compound  olfcnHes"  within  the  meaning  of  the  statute. 
Tiuf  learned  jud-^es  who  wrote  ojtinioas  in  the  case  I'ecognize  the  difliculty 
in  (Icliiiing,  with  exactness,  the  meaning  of  "compound  olfeuse-s,"  but  con- 
tend tl.it  the  breaking  and  entering  witli  intent  and  the  larceny  are  not 
coniiMittcd  by  the  same  act  or  tr.ansuction  at  the  same  point  of  time.  Upon 
the  authority  of  the  latter  cas;\  in  The  Sliitc.  v.  McFurland,  49  Iowa,  99,  the 
«!ourt  held  that  an  indictment  which  charged  burglary  and  larceny  in  two 
counts  wiis  bad  for  duplicity.  In  Tlie  State  v.  McCormick,  50  Iowa,  585, 
an  1  also  ni  ^':tte  v.  Henri/,  59  Iowa,  i390,  the  court  held  that  forgery  and  the 
uti  ringof  forged  paper,  et(\,  are  separate  and  distinct  oltenses,  and  tnat 
tlicy  cannot  both  1)0  charged  in  one  imlictment. 

TItc  general  rule.  —  The  general,  and,  as  it  would  seem,  the  better  rule, 
would  be  in  cases  of  breaking  and  entering  with  intent,  etc.,  to  hold  the 
l)iv:iking  and  enti'ring  as  aggravations  of  the  ulterior  offense.  It  might 
happen,  as  it  lias  happened  in  many  instances,  that  the  prosecutor  could  not 
jnove  beyond  a  doubt  a  t.'chnical  breaking,  and  if  the  indictment  contained 
agooil  count  for  larceny,  and  tliat  offense  wiis  fully  proved,  it  would  serve 
ti)  prevent  a  faiime  of  justice.  No  prejudice  could  result  to  the  accused 
from  such  a  rule,  a:<  the  prosecutor,  after  introducing  his  testimony  and  before 
the  .hcuschI  would  be  i)ut  to  his  defense,  wouM  ordinarily  be  compelled  to 
I'l'  >  t  \lii(  II  count  he  would  claim  a  conviction. 

Mr.  Cliici  .fustice  Tilghman.  in  Uiirmoa  v.  The  Com.,  12  S.  &  R.  (Pa.),  69, 
liiys  down  safe  rule  for  tiie  guidance  of  courts  in  matters  of  this  nature, 
la  tliat  c.  ( here  were  two  counts  in  tiio  indictment,  t>ne  for  rape  and  the 
I'tlier  for  an  assault  with  intent  to  ravish.  The  court,  overruling  the  objec- 
liou  iaise<l  a-sto  the  joinder  of  the  counts,  say:  "There  could  be  no  surprise 
t'>  him,  nor  any  dilUcuIty  in  defending  himself  against  both  charges.  In- 
deed, if  he  was  guilty  o''  the  rape,  he  must  have  been  guilty  of  the  assault 
witli  intent  to  ravish;  and,  if  he  wis  not  guilty  of  the  assault  with  intent 
to  ravish,  he  could  not  be  guilty  of  the  rape.  So  that  when  he  jirepared  for 
defense  against  one  count,  he  must  n(!cessarily  prepai'e  for  defense  against 
the  otiier.  ...  It  may  be  i)roper  to  remark,  here,  that  when  two  of- 
fenses are  charged  in  -I'liate  counts,  if  tlie  defendant  can  make  it  appear 
that  this  mode  of  prot  ding  will  subject  him  to  unreasonable  difficulty  or 
eiubarrassment  on  his  trial,  the  court  have  it  iu  its  power  to  protect  him  by 
quosliing  the  indit;tment,  or  compelling  the  prosecutor  to  elect  on  which 
count  he  will  ])roei>ed,  iind  discharge  the  defendant  from  the  other." 

Motion  to  elect. —  There  is  considerable  conflict  of  opinion  to  be  found  in 
the  decisions  as  to  when  a  motion  will  lie  to  compel  the  prosecutor  to  elect 
on  wiiich  count  lie  will  proceed,  when  the  indictment  charges  several  felo- 
nies; and,  as  ty  the  time  when  such  motion  should  be  made.  The  following 
is  Mr.  Wharton's  deduction  from  the  authorities; 

1.  Cognate  ollenses  may  be  joined  in  separate  counts  in  the  some  indict- 
ment. 


M 


330 


AMERICAN  CRIMINAL  REPORTS. 


3.  If  this  is  done  in  such  a  way  as  to  oppress  the  defendant,  the  remedy 
is  a  motion  to  quaah. 

8.  It  is  permissible,  in  m;wt  states,  to  join  several  distinct  olTunses,  to 
each  of  which  fine  or  im;jiisaiim.»:it  is  attajliablu;  auJ  upon  conviction  on 
cac!i  count,  to  impose  a  sentence  on  each, 

4.  Yet  as  to  oiTenses  of  hi^h  grade  in  all  the  states,  and  in  some  states  as 
to  all  offenses,  the  court  will  not  permit  more  than  a  single  issue  to  go  to 
the  jury,  and  hence  will  respiire  an  election  on  the  close  of  the  prosoju- 
tion's  case,  except  in  tliojL*  cases  in  which  the  offenses  are  so  b!ende:l  tliat 
it  is  eminently  for  the  jury  to  determine  which  count  it  is  that  the  evi  k'ai;o 
fits.  V/harton's  C.'im.  PI.  anl  Pr.,  soo.  2D1,  CMi  eJ.  Sjo,  al;)o,  1  Bisliop 
Ciim.  Pro.,  oh.  33,  3i  ed. 

In  State  v.  Johnson,  3  Harrington  (D3I.),  531,  the  court  say:  "  When  sav- 
cral  felonies  of  tin  sama  kind  are  chargjJ  in  several  counts,  the  court  will, 
on  motion,  compel  tlia  attjr;ioy-;jenaral  to  elect  oa  wliich  count  ho  will  pro- 
ceed." 

In  Coodhue  v.  The  People,  9t  111.,  37,  the  court  nay:  "If  two  or  more  of- 
fensos  form  pai't  of  one  transaction,  and  are  sujh  in  nature  that  a  defcnidant 
may  bo  guilty  of  botli,  the  prosecution  will  not,  as  a  general  rule,  bo  ])ut  to 
an  election,  but  may  proceed  under  one  indictmLiut  for  the  several  oir.'a.sus, 
thou  ;h  t'.u'y  h?,  felonious.  The  ri^ht  of  donianLliu,^  an  election,  and  tlio 
limitation  of  the  proaejutl  >n  to  one  off-'iise,  is  confine.l  to  char,;o^  \\\\\c\\ 
are  actually  distinct  fiom  ea.-li  other,  and  do  not  form  parts  of  on(!  and  tlio 
same  transaction.  In  misdemeanors  the  prosecution  may,  in  the  discretion 
of  the  court  trying  the  case,  be  re;iuireJ  to  confine  t'.iu  evidence  to  one 
offjnse;  or  wlicn  the  evidonce  is  given  of  two  or  m:)re  off  in.ieo,  may  bu  ro- 
quh'c  1  to  elo.:t  one  (ihai^je  to  b:>  su'oni'.tte  1  to  t!i3  jury ;  but  in  ca  ji.vi  of  fel- 
ony it  is  the  ri,"jht  of  tlie  a?cuse.l,  if  he  d<;man  1  it,  that  he  be  not  put  u])on 
trial  at  the  sani,'  time  for  m  )rj  t'lan  o:\i  olfjn.^j,  exv'pt  in  ca  les  where  t'ao 
several  oiijas.M  are  rej;)jjtivjly  pari^j  of  thj  sa.uj  transaiitio-i,"  Hjj,  also, 
Wharton's  C.  L.  (fjth  eJ.),  sec.  l^JJr. 

The  expre:!sion,  "char;;!S  which  are  actually  distinct  from  each  ollior," 
leaves  the  above  opinion  somewhat,  involve;!.  But  its  evident  m(>aniii,";  is 
"charges  which  are  actually  distinct  from  each  other"  oidy  in  jioiiit  of 
time,  because  it  would  be  highly  improper  to  introduce  in  an  iudiclnicnt 
for  murder  a  count  for  larceny,  although  both  offenses  mi,';lit  form  part  of 
one  transaction. 

It  is  evident  that  much  discr;'tion  mnrit  be  repoied  in  tlu?  trial  comt  as  to 
tliose  "cases  in  which  tho  offenses  are  so  blended  that  it  is  eminently  for 
the  jui-y  to  determine  which  count  it  is  that  tlie  evidence  fits;"  but  a  niani- 
fe.;t  e.-ror  of  judgment  prejudicial  to  the  riglits  of  the  accused,  like  otlier 
errors  of  a  judicial  nature,  slionld  be  tho  uubjejt  of  review.  Tii."  tiuie 
when  the  motion  should  be  entertained  must  rest  lar  ;;ely  in  the  discn'tion 
of  tlie  court.  But  it  would  seem  fair  to  the  prosecutor  that  in  thotic  cases 
where  a  joinder  of  counts  is  permissible,  that  hn  be  not  compelleJ  to  elect 
until  after  his  evidenco  ij  Lntroduvied,  and  buforo  thu  accused  is  put  to  liiB 
defense. 


ADAMS  V.  STATE. 


331 


Adams  v.  State. 

(15  N.  J.,  449.) 

Lauceny:  General  owner — Stealing  from  special. 

1.  A  general  owner  of  goods  may  be  guilty  of  larceny  in  stealing  such  goods 

from  a  special  owner. 

2.  To  constitute  a  crime  of  larceny  in  such  cases,  tha  taking  m^:2t  bo  felo- 

nious. 

A.  Kalisch,  for  plaintiff  in  error. 
W.  li.  Wilson,  for  the  state. 

Tiie  opinion  of  the  court  was  dclivcrod  by 

Knapp,  J.  The  plaintiff  in  error  v/as  indicted  for  grand  lar- 
ceny at  tlie  May  term  of  the  Union  oyer  and  terminer,  tho 
indictment  charyiiii''  hor  with  havin;^  feloniously  stolen  certain 
goods  and  chattels  as  tiie  property  of  Thomas  W.  Sloan,  abovo 
tho  value  of  $20.  She  was  tried  before  the  quarter  sessions  of 
that  county,  convicted  upon  the  trial,  and  sentenced  to  nine 
months'  imprisonment  at  hai'd  labor.  Tlie  property  was  levied 
upon  by  Sloan  as  tlio  property  of  (^'atherine  Adams,  under  an 
execution  wliich  Sloiin  hehl,  .is  constable,  against  her;  the  con- 
stable allowed  the  goods  to  remain  at  the  house  of  the  plaintiff 
in  error,  the  j)laco  of  tho  levy,  she  bojig  informed  of  the  levy. 
Before  the  time  for  sale  under  tho  execution,  the  plaintiff  in 
error  toolc  and  disposed  of  the  goods. 

The  case  comes  uj)  on  exceptions  to  the  refusal  of  the  court 
to  charge  as  requested,  and  upon  the  charge  as  made.  Tho 
assignments  of  error  i)resent  the  question  whether  larceny  may 
bo  committed  by  the  general  owner  of  property  in  taking  it 
from  one  \\\\o  has  the  sjiecial  ownership,  without  felonious 
intent  in  such  taking. 

It  is  impossible,  under  ordinary  circumstances,  for  one  to 
commit  larceny  in  taking  possession  of  his  own  property,  and 
the  general  owner  of  goods,  in  their  lawful  possession,  has  full 
dominion  and  control  over  such  goods:  but  it  seems  to  bo  well 
settled  in  the  law  that  larceny  may  be  committed  by  a  man 
stealing  his  own  pi'OjHn'ty,  if  iho  taking  be  an  lino  fnramU,  or 
with  a  fraudulent  design  to  charge  the  bailee  with  the  value  of 
it.    There  is  a  passage  found,  as  eaily  as  the  time  of  the  Year 


332 


AMERICAN  CRIMINAL  REPORTS. 


Books,  in  which  it  is  said,  "  if  I  bail  to  you  certain  goods  to 
keep,  and  then  retake  them  feloniously,  that  I  should  be  hung 
for  it,  and  yet  the  property  was  in  me."  This  passage  is  found 
repeated  in  all  the  leading  criminal  treatises,  but  with  the  addi- 
tion that  the  goods  be  taken  with  the  fraudulent  design  to  charge 
the  bailee  with  their  value.  1  Hale,  P.  C,  513 ;  4  Bl.  Com., 
331;  2  East,  P.  C,  558 ;  Ros.  Crim.  Ev.,  650.  As  if  one  delivers  his 
goods  to  another,  as  his  servant  or  bailee,  and  tlien  steals  them 
from  sucli  servant  oi*  bailee,  with  a  fraudulent  intent  to  charge 
him  with  their  value,  this  would  be  larceny  in  the  owner,  al- 
though he  might  have  had  their  possession  through  the  lawful 
assertion  of  his  title.  On  an  indictment  for  larceny  against 
such  general  owner,  the  property  in  the  goods  stolen  may  he 
laid  as  that  of  the  si)ecial  owner.  The  general  property  of 
goods  levied  on  by  execution  is  in  the  debtor,  and  renuiins  in 
him  until  they  are  sold  for  the  purpose  of  satisfying  the  execu- 
tion; but  the  officer  who  levies  acipiircs  a  special  property  in 
those  goods  which  entitles  him  to  their  possession  uutil  satis- 
faction be  made  of  the  execution.  JJ'dlenhack  v.  Jerome,  2 
Cow.,  293;  Smith  v.  Burtis,  G  Johns.,  19<>.  The  defendant 
asked  tlie  court  to  charge  the  jury  that  there  was  a  variance 
in  the  allegation  of  property  in  Sloan,  and  the  proof  U{)on  the 
trial;  that,  therefore,  the  defendant  should  not  bo  convicted. 
This  the  court  refused  to  charge,  and  the  evidence  is  brought 
here  for  examination  as  to  the  correctness  of  the  court's  action  in 
so  refusing;  but  upon  the  evidence  it  appears  that  Sloan,  as 
ah'eady  stated,  had  a  special  property  in  the  goods,  and  they 
were,  thcT'cfore,  pi'operly  laid  as  his  goods  in  the  indictment. 
There  was  no  error  in  refusing  so  to  charge. 

The  next  exception  is  as  to  what  the  court  did  charge  on  the 
subject  of  ownershij).  By  tlie  bill  of  exceptions  it  api)ears 
that  the  court  said  that  by  virtue  of  the  execution  and  levy 
"the  constable  became  the  owner  of  the  goods  levied  upon 
until  sold  by  him,  and  that  if  she  took  the  goods,  or  assisted 
any  one  else  in  the  taking,  she  is  guilty."  The  part  of  the 
charge  contained  in  this  bill  of  exceptions  is  all  wo  have  of  it. 
It  would  seem  to  be  a  sufficient  statement  of  the  law  defining 
the  rights  which  the  constable  acquires  in  virtue  of  a  levy. 
It  was  made  by  the  court  in  answer  to  the  objection  that  the 
true  ownership  was  not  alleged  in  the  indictment,  and,  as  re- 


ADAMS  V.  STATE. 


333 


>]>ccts  that  question,  the  instruction  of  the  court  was  correct. 
The  constable's  ownership  was  a  qualified  one,  it  is  true,  but  it 
was  sufficient  to  support  the  averment.  The  further  statement 
in  that  portion  of  the  charge,  namely,  "  that  if  she  took  the 
goods,  or  assisted  any  one  else  in  taking  them,  she  is  guilty," 
may  be  subject  to  more  criticism.  It  certainly  is  not  a  full 
presentation  of  the  law.  It  is  not  every  sort  of  taking  of 
tlicse  goods  that  would  make  her  criminally  liable.  It  might 
have  amounted  to  no  more  than  a  trespass  or  a  conversion  of 
tlie  property  as  against  the  officer.  The  goods  were  left  in  her 
custody  by  the  officer.  As  between  them  she  may  have  been 
considered  as  a  mere  receiptor  for  the  goods,  with  the  right  in 
the  officer  to  de})rive  her  of  her  possession  and  assume  it  him- 
self. But  she  not  onl}'^  had  their  actual  custody  but  was  as 
well  tlie  general  owner,  .'ind  could  at  any  time  before  sale,  by 
paying  the  judgment,  remove  the  officer's  hands  entirely  from 
lier  property.  Now,  unless  her  taking  the  goods  was  under 
sucli  circumstances  as  in  some  way  to  fraudulently  charge  him 
witli  their  value,  it  is  difficult  to  find  any  recognized  rule  of 
criminal  law  that  would  hold  her  answerable  for  larceny. 

This  case  fails  in  resemblance  to  that  of  Palmer  v.  People^ 
10  Wend,,  106,  in  this  important  feature:  Palmer  was  con- 
victed of  having  feloniously  stolen  property  of  one  Jennings, 
'who,  as  constable,  had  levied  upon  property  by  virtue  of  an 
execution  against  Palmer.  The  goods,  by  the  officer's  consent, 
remained  with  Palmer,  who  subsequently  sold  the  shingles  and 
charged  the  constahle  with  having  taken  them  away,  and 
brought  suit  against  him  for  their  value  upon  that  false  allega- 
tion. This  proof  was  held  sufficient  on  the  ground  that  it 
charged  a  felonious  taking  of  his  own  property,  with  intent  to 
charge  the  constable  with  the  value  of  it,  bringing  the  case 
within  the  rule  above  stated  as  the  ground  of  criminal  liabil- 
ity. Tn  this  charge  is  found  the  broad  pro})osition  that  any 
sort  of  taking  or  conversion  by  the  general  owner  of  property 
loft  in  her  possession  l)y  a  coiistable  possessed  of  the  I'ights 
which  a  levy  gives  him,  is  a  criminal  act,  and  that  of  larceny. 
No  fraudulent  or  evil  design  existing  in  the  mind  of  the  de- 
fendant is  charged  or  intinuited  to  be  a  necessary  element  of 
guilt.  It  would  not  be  every  taking  by  a  mere  stranger  of 
these  goods  from  the  possession  of  the  constable  that  would 


"W" 


334 


AMERICAN  CRIMINAL  RI^PORTS. 


amount  to  larceny.  A  felonious  intent  would  bo  a  rcqiiisito 
ingredient  in  sucli  crime.  A  convcivsion  of  the  goods  i)y  a 
stranger  wlio  ha  I  baen  appaintod  their  kei^per  by  a  con5tiil)lo 
would  not  have  been  a  crime  but  a  civil  wrong  merely.  To 
hold  the  general  owner  in  possession  to  a  severer  rule  seems  to 
mo  to  savor  of  illegal  severitv.  I  am  unable,  in  the  researcjies 
I  have  made,  to  find  any  case  which  wiirrants  the  ascripti;)n  of 
criminality  to  such  facts.  The  case  of  /icx  v.  WUkhison,  Iluss. 
&  Ry.,  471,  Avhich  goes  as  far  as  any  other  that  I  have  found, 
presented  the  features  of  ilagrant  fraud  on  the  part  of  the  de- 
fendants, who  Avero  the  real  owners  of  the  property,  upon 
cither  the  prosecutors  or  upon  the  crov>n.  As  to  which,  tlio 
judges  were  divided  in  opinion.  If  Ave  are  permitted  to  look 
into  the  evidence  which  is  handed  us  Avith  the  record,  one  can 
scarcely  escape  the  conclusion  that,  if  the  rule  had  been  stated 
to  the  jury  Avith  the  proi)er  qualidcation,  they  must  have  failed 
to  find  in  it  CAudence  of  such  felonious  design  as  Avould  have 
raised  the  o!Tense  above  that  of  a  mere  civil  injury. 

Whether  the  judge  in  other  parts  of  his  charge  qualified 
the  expressions  in  the  opinion  excejited  to,  Ave  have  no  means 
of  knowing;  the  charge  is  not  before  us.  Wo  have  nothing 
but  this  pointed  statement  of  his  views  of  the  law.  AVe  must 
assume  that  this  embraced  his  entire  instruction  to  the  jury 
upon  the  legal  requisites  of  guilt,  and  it  was  erroneous  in  a 
Avay  that  must  have  prejudiced  the  defendant  in  her  trial.  I 
think  the  judgment  for  this  error  should  be  reversed  and  a 
new  trial  ordered. 


Peoi'lk  v.  Lkono  Quo:ro. 

(GO  Cal.,  107.) 

L.\uceny:  Aaine  — Variance. 

1.  Larceny— Name— Vaiiiance  as  to  alleged  ownership  op  PRorEUTV. 
Appellants  were  convicted  of  the  crime  of  grand  larceny,  for  stealing  a 
horse  and  wagon,  the  alleged  proiserty  of  one  Sang  Hop.  On  the  trial 
of  the  C!;se  tlio  owner  of  the  property  ntolen  testified  that  ho  had  two 
names  —  a  husiness  nmne  and  a  jM^rsonal  one.  Ilchl,  that  jus  the  owner 
of  the  property  was  known  by  tlie  name  of  S'.ing  Hop,  that  name  wan 
BuHieient.  in  legal  proceedings,  whether  he  had  another  name  or  not. 


PEOPLE  V.  LEONG  QUONG. 


335 


2.  Samk. —  The  name  of  the  owner  of  property  stolen  is  not  a  material  pai  t 
of  the  olFeiiso  cliarge;!.  It  is  only  required  to  identify  the  transaction, 
so  that  the  dof(;n.lant,  by  proper  plea,  may  protect  liimself  against  au- 
otlier  prosecution  for  the  same  offense. 

Appeal  from  the  Suporior  Court  of  the  City  and  County  of 
Sail  Francisco.     Fcj'ral,  J. 

Thomas  F.  Barry,  for  appellants. 


JIcKkk,  J.  The  appellants,  in  this  case,  were  convicted  in 
the  court  below  of  the  crime  of  grand  larceny,  for  stealin;^  a 
horse  and  waoon,  the  al]e;j;ed  property  of  one  San;^  Hop. 
The  commission  of  tlic  oiTcnsc  was  proved  by  unquoitioned 
evidence.  No  exception  is  taken  to  the  charge  of  the  court 
to  tlic  jury,  but  it  is  contended  that  the  verdict  is  contrary  to 
law,  because  of  a  variance  bstwecn  the  information  and  evi- 
dence as  to  the  name  of  the  injured  party. 

On  the  trial  of  the  case  the  owner  of  the  property  stolen 
testified  that  he  had  two  names  —  a  business  name  and  a  per- 
sonal one.  His  pei'sonal  name  was  Yup  Chin,  and  his  business 
name  Sang  Hop;  and  that  in  all  his  business  transactions  and 
dealings,  for  years,  he  has  been  known  by  his  business  nanio 
only. 

The  name  of  a  pei'son  is  the  designation  by  which  lie  is 
known.  As,  therefore,  the  owner  of  the  property  was  known 
by  the  name  of  Sang  Hop.  tliat  name  was  sufficient,  in  legal 
proceedings,  whether  ho  had  another  name  or  not.  As  is 
said  by  the  supreme  court  of  Afassaclmsetts:  "  The  name  which 
was  given  to  a  ])crson  at  the  time  he  was  baptized  is  to  be  taken 
as  originally,  and  presumed  to  continue,  his  name;  but  if  after 
liis  baptism  he  adopts  and  uses  another  name  by  Avhich  he  is 
subsequently  well  known  in  the  community  where  he  resides, 
prior  to  and  at  the  time  of  the  aUeged  sale,  it  is  sullicicnt  if  ho 
is  described  by  that  name  in  tlie  comphiint."  Commonvicalth 
•6.  Tra'mor.  1'23  Mass.,  415.  The  name  of  the  owner  of  prop' 
erty  stolon  is  not  a  material  part  of  tlie  otfense  cliarged.  It  is 
only  rctpiired  to  identify  the  transaction,  so  that  the  defendant, 
by  proper  ]>lea,  may  protect  himself  against  another  prosecu- 
tion tor  tlie  same  olfense.  The  owner  nuiy  have  a  name  by 
reputation,  and  if  it  is  proved  that  he  is  better  known  by  that 


336 


AMERICAN  CRIMINAL  REPORTS. 


name  than  any  other,  the  charge  in  the  information  by  that 
name  is  sufficient.     The  State  v.  Bell,  05  N.  C,  314. 

There  was  therefore  no  variance  between  the  information 
and  proof  in  the  case  which  affected  any  substantial  right  of 
the  defendant.     People  v.  Hughes,  41  Cal.,  236. 

Judgment  and  order  ajjirmed. 

Morrison,  C.  J.,  and  Eoss,  Mykick,  Thornton  and  Sharp- 
stein,  JJ.,  concurred. 


State  v.  Jenkins. 

(78  N.  C,  478.) 

LiAiiCENY:  Ownership  of  property. 

In  an  indictment  of  the  larceny  of  certain  meat  belonging  to  a  railroad  com- 
pany, the  property  was  laid  in  a  depot-agent  of  the  company  who  had 
possession  and  control  of  it  for  the  company  for  the  use  of  its  hands; 
TieZd,  that  the  indictment  is  defective;  the  property  should  have  been 
laid  in  the  railroad  company,  the  agent  in  such  case  not  being  a  bailee. 

Indictment  for  larceny.  Buike  Superior  Court,  before 
Schenck,  J. 

Keade,  J.  The  only  question  Avhich  it  is  necessary  to  con- 
sider is,  whether  the  property  in  the  goods  stolen  is  properly 
laid  in  the  indictment. 

It  is  settled  by  all  text-writjers,  and  it  is  familiar  learning, 
that  the  property  must  be  laid  to  be  either  in  him  Avho  has  the 
general  proi)erty  or  in  him  who  has  a  sjyec'lal  property.  It  must, 
at  all  events,  be  laid  to  be  in  some  one  who  has  a  jj^'opertij  of 
some  kind  in  the  article  stolen.  It  is  not  sufficient  to  charge  it 
to  be  the  property  of  one  who  is  a  mere  servant,  although  he 
may  have  had  the  actual  possession  at  the  time  of  the  larceny ; 
because,  having  r\o  jM'oj)ertg,  his  possession  is  the  possession  of 
his  master.  These  are  the  only  general  pi'inciples  that  can  be 
laid  down;  and  any  given  case  must  be  governed  by  them. 

In  this  case  the  meat  stolen  belonged  to  the  railroad,  and 
w^as  in  its  })ossession  in  its  depot-hous(N  for  the  purpose  of  feed- 
ing its  hands.  The  pr<)}>erty  is  not  laid  to  be  in  the  railroad, 
but  in  its  depot-agent,  who  had  nothing  to  do  with  it  and  did 


STATE  V.  JENKINS. 


nothing  with  it  except  to  give  it  out  to  the  railroad  hands  to 
eat.  Ifis  testimony  was  that  he  wa^j  "the  agent  at  the  depot 
and  had  possession  and  control, /b;*  ikem,  as  their  bailee  of  the 
bacon  alleged  to  have  been  stolen  by  defendant;  that  on  Fri- 
day evening  he  issued  rations  of  bacon  to  the  railroad  hands, 
nnd  in  the  hogshead  where  the  bacon  was,  he  left  one  and  a 
half  sides  of  bacon  loose;  and  that  hev locked  the  depot  and 
took  the  key,"  etc. 

It  is  true  he  says  he  was  their  bailee ;  but  what  is  a  bailment 
is  a  question  of  law,  and  the  facts  which  he  states  do  not 
make  h'm  a  bailee.  A  bailee  has  a  special  property  in  the 
thing  bailed.  He  does  not  pretend  that  he  had  any  property 
in  it,  or  that  he  held  it  for  any  use  of  his  own.  He  states  ex- 
pressly that  he  was  the  railroad's  agent  and  had  possession  and 
control  of  the  meat  '\for  them."'  It  was  in  their  house,  for  their 
use,  to  feed  hands,  and  was  issued  to  their  hands  by  their  agent 
or  servant.  The  agent  himself  might  have  committed  larceny 
of  the  bacon,  which  could  not  have  been  the  case  if  he  had 
been  the  bailee. 

It  has  been  decided  in  this  court  that  one  who  gets  staves  on 
my  land  on  shares  may  steal  them  before  they  are  divided. 
So  an  overseer  who  is  to  have  a  part  of  the  crop  for  his  Avages. 
So  witli  a  ci'ojiper.  So  with  a  clerk  in  a  store.  So  with  a 
servant  or  agent  of  any  kind,  who  has  Xio  property  in  the  thing 
stolen,  althougli  he  ma}'^  have  the  possession.  It  is  otherwise 
if  he  has  a  property,  general  or  special.  A.  is  the  general 
owner  of  a  horse;  B.  is  the  special  owner,  having  hired  or 
l)orrowed  it,  or  taken  it  to  keep  for  a  time ;  C.  grooms  it  and 
keeps  the  stable  and  the  key,  but  is  a  mere  servant  and  has  no 
property  at  all.  If  the  horse  be  stolen  the  property  may  be 
laid  to  be  either  in  A.  or  B.,  but  not  in  C,  although  he  had  the 
actual  possession  and  the  key  in  his  pocket. 

Why  Avas  not  the  property  laid  in  the  railroad  ?  Then  there 
could  have  been  no  difficulty.  Or  there  might  have  been  tAvo 
counts  if  there  Avas  any  uncertainty. 

There  is  error.    This  will  bo  certified. 

Per  Curiam.  Venire  de  novo. 

Vol.  IV— 23 


TTW 


iifi^ 


338  AMERICAN  CRIMINAL  REPORTS. 

Campbell  v.  The  People. 
f 

(100  m.,  565.) 

Larcent:  Receiving  stolen  goods  —  Autrefois  acquit  —  Pica  of — General 
verdict  —  Improper  remarks  of  state's  attorney — Waiver  —  Instruc- 
tions, 

1.  Larceny — Receiving  stoi-en  goods— Local  jurisdiction  op  of- 

fenses—Exceition  TO  the  rule.— Under  the  consstitutiim  ami  laws 
of  this  state,  as  at  couimon  law,  the  local  jurisdiction  of  all  olfciscs  is 
in  tlie  county  whei-e  the  olfense  is  committed.  The  crime  of  larcenv 
is  made  an  exception,  and  the  offender  may  be  tried  in  any  county 
to  which  he  can-ies  the  stolen  property,  or  where  it  mny  be  found,  as 
well  as  in  the  county  in  which  the  propei'ty  was  first  taken.  This  rule 
has  no  api)lication,  however,  to  any  crime  other  than  larceny.  The 
oifeiiso  of  receiving  stolen  property,  or  aiding  in  itn  conccidnient, 
knowing  it  to  have  been  stolen,  is  not  embraced  in  hc  ction  31)3  of  tlio 
Criminal  Code,  and  the  person  must  be  tried  in  the  comity  where  th(» 
olTense  was  committed. 

2.  Same  — Former  acquittal- Whether  a  bar  to  a  skcond  proseci- 

TioN  —  Jurisdiction  essential  —  Former  acquittal  in  ani^theu 
coi'NTV. —  The  trial  and  acquittal,  in  one  count}',  of  one  cliar;;cd  witli 
receiving  stolen  goods,  knowing  them  to  have  been  stc  len,  is  no  bar  to 
an  indictment  for  the  same  olfense  in  a  different  county,  unless  it  slinll 
ap]H>ar  tiiat  tlio  offense  was  committed  in  the  county  in  which  the  ac- 
quittal was  had,  so  as  to  give  the  circuit  court  of  that  touiity  .iurisdic- 
tion.  An  ac(iuittal  of  a  crime  by  a  court  having  no  jurislii ti(  n  is  no 
bar  to  a  prosecution  for  the  same  offense  in  a  court  having  jurisdic- 
tion. 
8.  The  general  rule  at  common  law  is,  that  an  acquittal  in  one  county  (an 
only  be  pleaded  in  the  same  county,  for  the  reason  tliat  all  indict  uuiits 
are  local;  and  if  the  first  is  laid  ui  the  wrong  coiinly,  the  dcfi'iiilant 
cannot  be  found  guilty,  and  could  not  have  been  in  h\i;al  jcopimly. 
To  this  rule  thei'e  are  a  few  exceptions,  as,  in  larceny,  and  in  casi'  of  a 
change  of  venue,  as  in  this  state. 

4.  Same  —  Former  acquittal,  to  be  a  bar,  must  have  been  is  re- 

spect TO  the  same  identical  offense  —  And  tiik  plea  must  i-o 
SHOW. —  To  make  a  plea  of  a  former  acquittal  or  couvii  tion  a  bar  to  a 
second  indictment,  [jroof  of  the  facts  alleged  in  the  second  must  be 
sufficient  in  law  to  have  wanumted  a  conviction  upon  tl'.e  iirs.t  intHct- 
ment  of  the  same  offense  chai'ged  in  the  second  one,  and  iu)t  of  a  dif- 
ferent offense;  and  the  plea  must  show  that  the  offense  charged  in 
both  cases  is  the  same  in  law  and  in  fact,  and  the  (lucstion  must  be  de- 
termined by  the  facts  appearing  from  the  record,  without  the  aiil  of 
extrinsic  circumstances. 

5.  Same  — Of  a  plea  of  formi^r  acquittal  —  Its  requisites.— A  plea 

of  an  acquittal  of  the  same  offense  in  a  different  county  is  defective, 
in  substance,  if  it  fails  to  show  that  the  court  of  such  other  county 


CAMPBELL  V.  THE  PEOPLE. 


ha  1  in  aom?  legal  way  a-jquiroil  .jurislit-tion  of  the  subject-matter,  anl 
how  such  jurisdiction  was  aciiuiro  I,  as,  by  a  change  of  venue,  or,  in 
case  of  larceny,  by  the  defendant  having  taken  the  stolen  property 
into  H  icli  county. 
0.  Same  — A  plka  must  answer  all  it  professes.— A  special  plea  (as, 
a  former  acquittal)  to  an  indictment  containing  several  counts,  if  it 
fails  to  answer  any  one  count,  is  bad  on  demurrer. 

7.  Same  — Concealing  stolen  property.— A  party  knowing  property  to 

have  been  stolen  has  no  riglit  to  conceal  the  same,  even  with  tlie  in- 
tention to  save  him  sulf  from  h)ss;  and  a  clause  in  an  instruction,  on 
the  part  of  the  defendant,  announcing  a  different  rule,  will  vitiate  the 
entire  instruction. 

8.  Same  — General  verdict  on  several  counts.— On  an  indictment  for 

receiving  stolen  ])ropeity,  and  also  for  aiding  in  its  concealment, 
clitirged  in  two  separate  ct)unts,  both  of  which  relate  to  but  one  and 
tlie  same  transaction,  the  punislmient  for  each  offense,  even  if  distinct 
ones,  being  the  same,  a  general  verdict  of  guilty  is  good,  and  will  sus- 
tain a  judgment  inflicting  a  single  punishment. 
{).  Puactice  — Improper  remarks  of  state's  attorney  — Waiver  by 
•  FAiLixo  TO  OBJECT. —  A  party  on  trial  upon  a  criminal  chargi,"  will  not 
be  permitted  to  remain  quiet  without  calling  the  attention  of  the  court 
to  it,  and  permit  the  state's  attorney  to  indulge  in  improper  language, 
and  afterwiird  assign  the  same  for  error.  He  must  object  at  the  outset, 
or  his  t)bjection  will  be  deemed  to  have  been  waived.  But  the  fact 
defendant's  counsel  may  have  traveled  outside  of  the  recoi'd.  and  made 
statements  not  warranted  by  the  evidence,  affords  no  justification  for 
the  state's  attorney  to  do  the  same  thing. 

10.  Instruction  — GiviNd  undue  prominence  to  particular  facts,  and 

GIVING  improper  CONSTRUCTION    TO   A  LETTER. —  Ou   the   trial    of    Ono 

for  receiving,  and  also  for  aiding  in  ct)ncealing,  stolen  property,  an  in- 
struction directing  the  attention  of  the  jury  to  a  pai'ticular  part  of  the 
evidence,  and  giving  it  undue  importance,  and  which  also  gives  a  con- 
struction to  a  letter  of  the  defendant  not  warranted  by  any  correct 
reading,  is  properly  refused. 

11.  Same  — Should  i.i:  applicable   to  the  case.  -  Although  an  instruc- 

tion contains  a  correct  principle  of  law,  yet  if  it  has  not  the  slightest 
application  to  the  fai'ts  of  the  case,  its  refusal  is  proper. 

Writ  of  Error  to  tlio  Circitit  Court  of  Jackson  County;  the 
Hon.  Daniel  M.  Jirowning.  Judge,  presiding. 

Messr-i.  AJhi'hjht  tC*  llarhcn  and  Mi\  R.  M.  Davis,  for  the 
plaintiff  in  error. 

Mi\  Jaitics  McCartney,  attorney-general,  and  IFr.  Wdliam 
Srhamrtz,  state's  attorney,  for  the  people. 

^[r.  Justice  Scott  delivered  the  opinion  of  the  court. 
The  indictment  presented  by  the  grand  jury  in  the  circuit 
coui't  of  Jackson  county,  at  the  December  term,  1882,  against 


340 


AMERICAN  CRIMINAL  REPORTS. 


Thomas  Ciiiupbell,  contains  two  counts.  The  first  one  cliaroos 
defendant  with  receiving  stolen  goods,  knowing  tlie  same  to 
have  been  stolen,  and  the  second  charges  him  witli  nnlawfullv 
and  feloniously  aiding  in  concealing  stolen  property,  knowiii"- 
the  same  to  have  been  stolen.  On  being  arraigned  at  the 
March  term  of  the  court,  1SS3,  defendant  entered  a  motion  to 
quasli  the  indictment,  which  motion  being  overrule!  by  the 
court,  he  entered  a  plea  of  not  guilty,  on  "which  a  trial  Avas 
had.  l)ut  the  jury  failing  to  agree,  they  were  discharged,  and 
the  cause  continued.  At  the  August  term  of  court,  Issp,, 
defeiulant  seems  to  have  tiled  a  special  plea,  in  Avhicli  it  is 
averred,  in  substance,  he  was  indicted  in  tlie  county  of  Perry, 
at  the  October  term,  1882,  of  the  circuit  court  of  tliat  county, 
Avith  one  Kobert  C.  ]\rilburn,  for  the  identical  same  offense, 
and  that  on  the  trial  in  the  circuit  court  of  that  county  ho  was 
acquitted.  To  the  plea  setting  forth,  with  the  usual  formality, 
the  proceedings  had  against  defendant  in  the  circuit  court  of 
Perry  county,  and  his  acquittal  of  the  olTenso  charged  against 
him  in  the  indictment  by  the  verdict  of  a  jury,  and  the  judg- 
ment of  the  court  thereon,  the  state's  attorney  prosecuting 
tiled  a  demurrer,  which  was  by  the  court  sustained.  On  the 
trial  at  that  term  of  the  court,  on  the  plea  of  not  guilty,  filed 
at  a  former  term,  defendant  was  found  guilty  by  the  jury,  and 
the  term  of  punishment  llxed  at  a  period  of  three  yenrs  in  the 
penitentiary.  Motions  for  a  new  trial  and  in  arrest  of  judg- 
ment Avere  severally  overruled,  and  the  court  pronounced 
judgment  on  the  verdict. 

The  points  made  upon  which  defendant  most  confidently 
relies  for  a  reversal  of  the  judgment  against  him  are,  the  court 
erred,  first,  in  sustaining  the  demurrer  to  the  plea  of  auttv- 
fols  acquit^  second,  in  refusing  certain  instructions  asked  by 
defendant;  and  third,  in  permitting  the  state's  attorne}^  in  his 
closing  argument  to  the  jury  on  behalf  of  the  people,  to  make 
remarks  concerning  defendant  not  warranted  b}'^  the  evidence, 
and  Avhich  were  calculated  to  prejudice  his  defense. 

The  principal  question  in  the  case  arises  on  the  decision  of 
the  court  sustaining  the  demurrer  to  the  plea  of  autrefois 
acquit.  The  plea  contains  a  copy  of  the  indictment  found 
against  defendant  in  the  county  of  Perry,  and  it  is  seen  it  is  an 
exact  copy  of  the  one  found  against  defendant  by  the  grand 


rega 


CAMPBELL  V.  THE  PEOPLE. 


Oil 


jui'V  of  tlio  county  of  Jjickson,  and  under  Avliich  ho  was  con- 
victed, except  the  venue  is  laid  in  tlio  county  of  Peny,  Tlio 
indictments  in  both  counties  contain  two  counts, —  one  for 
rccoiviny  stolen  property,  knowing  it  to  have  been  stolen,  and 
one  tVti'  aiding  in  concealing'  stolen  property, —  and  were  foujul 
under  section  2'.]\)  of  the  Criminal  Code  {U.  S.  1874).  It  is 
licirdly  necessary  to  state  a  pi'inciple  so  elementary,  that  if  the 
circuit  court  of  Ferry  county  had  no  jurisdiction  to  try  defend- 
ant for  tlie  crime  with  which  he  is  charg-ed  in  Jackson  county, 
its  judgment  would  be  no  bar  to  the  present  prosecution. 
Undrr  tlu;  constitution  and  laws  of  this  state,  as  at  common 
law,  tlie  local  jui'isdiction  of  all  otleiises  is  in  the  county  wIkmo 
the  od'enso  is  committed.  See  art.  2,  sec.  9,  Const.  ISTO,  and 
sec.  'Mo  of  the  Crim.  Code  (11.  S.  1ST4).  The  statute,  it  will 
be  seen,  follows  cl<»sely  tlie  constitution,  and  declaivs,  "tlio 
local  jurisdiction  of  all  otl'enses  not  otherwise  provided  by  law 
sliall  be  in  the  county  where  the  offense  was  committed.'' 
Among  tlie  jirovisions  for  jurisdiction  of  the  same  oll'cnse  in 
more  than  one  county  is  where,  as  in  section  .'U);»  of  the  Crim- 
inal Code,  which  ])i'ovides,  concerning  jurisdiction  in  la.rceny, 
that  "where  pro[)(>i'ty  is  stolen  in  another  state  or  country,  and 
brought  into  this  state,  or  is  stolen  in  one  county  of  this  state 
and  cari'ied  into  another,  the  jui-isdiction  shall  be  in  any  county 
into  or  through  which  the  property  may  have  passed,  oi'  where 
the  same  may  be  found."  This  latter  statute  is  simidy  declara- 
tory of  the  common  law  on  the  same  sidiject.  Larceny.  Viuder 
the  laws  of  this  state,  '"is  the  felonious  stealing,  taking  and 
carrying,  leading,  riding  or  driving  away  the  personal  goods 
of  aiKjther."'  The  common  law  —  which  contained  the  same 
definition  of  larceny  —  seems  to  have  regarded  the  felony  as 
having  been  committed  where  the  goods  were  fehmiouslv 
stolen,  but  f<n"  the  i)urposes  of  jurisdiction  the  olFense  was 
treated  as  having  been  committed  within  any  jurisdiction  iiito 
which  the  projierty  was  afterwards  carried.  The  rule  on  this 
suhject  ])rocee(ls  on  the  legal  assumption  that  where  tlie  prop- 
erty has  been  feloniously  taken,  every  act  of  removal  may  bo 
regarded  as  a  new  taking  and  asportation.  3  (J ray,  4;)4.  That 
is  the  meaning  of  the  statute  of  this  state  concerning  juris- 
diction in  larceny  cases.  It  has  no  application,  however,  to 
imy  crime  other  than  larcen}'.     The  offense  or  olFenscs  with 


312 


AMERICAN  CKIMINAL  REPORTS. 


which  defendant  stands  charged  are  not  embraced  within  tlio 
terms  of  the  statute. 

The  plea  of  autrefois  acquit  is  grounded  on  that  prin('i])Io 
of  the  common  hiw,  and  which  has  been  incorporated  in  tlio 
constitution  of  this  state,  no  pcrscm  shall  "be  twice  ])tit  in 
jeopardy  for  the  same  offense."  A  former  accpiittal  niav 
always  bo  pleaded  to  a  secoml  indictment  for  the  samo  ollVnsc, 
which  implies  that  the  court  that  pronounced  the  judgment  of 
acipiittal  had  jurisdiction  of  the  cause.  The  priiK'ii)li>  is  of 
course  familiar,  but  there  is  often  some  dilliculty  met  witli  in 
its  applicaticm.  Generally  the  rule  is,  as  at  common  law.  jui 
acquittal  in  one  county  can  only  be  ])leadod  in  the  same  county, 
and  the  reason  assigned  is,  because  all  indictnumts  are  loi;il, 
and  therefore  if  the  lirst  were  laid  in  a  wrong  county  the  do- 
fendant  could  not  be  found  guilty  upon  it,  and  consecjucntly 
was  in  no  danger,  and  therefore  could  not  ])lead  an  acunittal 
u])on  it  in  bar  of  a  subsequent  indictment  for  the  oH'cmisc  in 
the  proper  county.  Yaii,ex  ^V.sr,  Tt.  4,  Co.  4r)d,  Com.  Di'^., 
Indict.  L. ;  1  Wharton  on  Ci-im.  Law,  ]).  5.').5,  ed.  of  1S74; 
2I((i'.<Ji(ill  )\  Tito  Sfati',  10  Ohio  St.,  ',W.\.  j>ut  at  common  law 
there  ^wqyq  excei)tioiis  to  this  general  rule,  and  one;  of  tlic  ex- 
ceptions most  frequently  noted  is  in  cases  of  larceny  where 
the  jurisdiction  might  be  where  the  felony  was  in  fact  com- 
mitted, or  in  that  jurisdiction  into  which  the  pro])erty  m!;jlit 
be  carried,  and  that  c.\cei)tion,  as  well  as  some  others,  exists 
mider  the  hnvs  of  this  state.  Among  the  othei-  (wceptions, 
under  our  laws,  is  where  the  venue  is  changed,  under  the  stat- 
ute, from  one  county  to  another. 

It  is  said  by  text-writers,  the  crown  may  either  traverse  or 
demur  to  the  plea  of  auinfoix  avqnlt.  The  same  praeitico 
would  no  doubt  prevail  under  oar  system  of  jin'ispru(leiie:\ 
In  this  case  the  (pu'st'on  as  to  the  suHiciency  of  the  plea  to  bar 
the  j)rosecution  arises  on  a  demurrer  to  it,  interposed  l>y  tlic 
l)eople.  The  rule  laid  down  by  I'lackstono  as  to  pleas  of  this 
character  has  been  adopted  by  this  court  in  FrctUmtl  r.  Tin' 
reo[)le,  1(5  111.,  3S(),  and  is,  with  reference  to  former  ac(]iiittal 
or  conviction,  it ''must  bo  upon  a  prosecution  for  the  same 
iaenticalact  and  crime."  All  the  authorities  hold  that,  to  en- 
title a  defendant  to  the  benefit  of  this  plea,  it  is  necessary  the 
crimes  charged  in  the  first  and  second  indictments  should  bo 


CAMPBELL  t'.  THE  IJEOPLE. 


343 


the  same,  ami  tluit  if  the  crimes  charged  in  the  first  and  second 
i.:(littments  are  so  distinct  tliat  the  evidence  of  the  ono  will 
not  support  the  other,  a  conviction  or  accjuittal  of  the  one  will 
not  bill'  a  pros:!ciition  of  the  other, —  or,  adopting  the  language 
of  tliis  court  in  Fri'dnnd  v.  Tho  PtnpJc^  the  rule  may  be  stated 
to  be,  lliat,  to  make  the  plea  a  bar,  proof  of  the  facts  alleged 
in  Ihe  second  indictment  must  be  sutfici(mt  in  law  to  have  war- 
nmicd  a  conviction  upon  the  first  indictment  of  the  same 
olTcn  •(•  cliargcd  in  the  second,  and  not  of  a  difTeront  offense. 
Tlio  genei'al  rule  adopted  fin*  ascertaining  the  identity  of  the 
olfcnsi'S  is  as  stated  by  Archbold  in  his  work   on   Criminal 
I'lcading,  li'i,  where  it  is  said:  "The  true  test  by  which  the 
(piestiou  whelher  tlie  plea  is  a  bar  in  any  particular  case  may 
1)0  tried   is.  wlicther  the  evidence   necer>sary  to   support  the 
second  indict nuMit  would   have  been  suilicient  to  procure  a 
loiiid  conviction  on  the  first."     Sub.stantiallv  the  rule  has  been 
stated  in  the  same  way  by  Chitty  in  his  work  on  Criminal 
Law.  and  as  stated  by  both  authors  it  has  been  adopted  by 
this  court.      Applying  these  well    understood    principles  to 
the  plea  be"ng  considered,  the  case  ought  not  to  present  any 
groat  dilliculty.     "Wouhl  pi'oof  of  the  facts  alleged  in  the  in- 
<lictnient  in  -lackson  county  have  warranted  a  legal  conviction 
OR  the  indie! nient  in  Peri-y  county?    That  is  one  of  the  tests, 
it  is  said,  must  be  a])i>lii'(l,  and  it  is  obvious  the  question  admits 
of  oidv  a  negative  answer,     ('(n-tainlv  the  ofTenso  of  receivin<r 
stolen  pvoi)erty  in   IVrrv  county,  kn(^wing  it  to  have   been 
stolen,  is  not  the  same  offense  as  receiving  stolen  propert}'  in 
.hickrfon  county  with  a  like  guilty  Icnowledge,     As  a  nnitter  of 
law  they  ar(^  distinct  offenses  —  as  much  so  as  a  murder  com- 
nutted  in  one  county  is  a  distinct  crime  from  a  murder  com- 
mitted in  another  county.     Pi'oof  of  a  mmxlcr  committed  in 
ono  county  woidd  not  sustain  a  prior  indictment  for  the  same 
murder  in  another  county;  nor  could  the  first   acquittal  be 
pleaded  in  bar  of  a  second  indictment  found  in  the  county 
where  the  ci'inie  was  in  fact  peri)etrated,  and  the  reason  is,  be- 
cause in  the  judgment  of  the  law  the  accused  was  not  in  jeop- 
ardy on  the  first  indictment.  The  principle  is,  as  at  common  law, 
if  the  offense  charged  in  the  second  indictment  is  in  one  kind's 
roign,  and  the  first  indictment  was  confined  by  the   i'oniru, 
[iitvim  to  the  preceding  reign,  an  acquittal  upon  the  first  could 


?jU 


AMERICAN  CRIMINAL  REPORTS. 


not  be  pleaded  in  bar  to  the  second.  The  ground  upon  Avhich 
tliat  principle  is  said  to  rest  is,  the  contra  pacem  tied  up  tlie 
prosecution  to  proof  of  an  olFeuse  in  a  particular  reign.  Jiy 
our  system  of  pleading,  the  venue,  as  laid  in  the  indictment 
confines  the  prosecution  to  proof  of  an  offense  committed  in  a 
particular  county,  as  effectually  as  the  proof  was  limited  bv 
tlic  contra  pacem  regis  at  common  law  to  an  offense  committed 
in  the  reign  of  a  particular  king. 

It  is  the  settled  law  that  an  acquittal  on  one  indictment,  in 
order  to  be  a  good  defense  to  a  subseqent  indictment,  must  be 
an  acquittal  of  the  same  identical  offense  as  that  charged  in  the 
second  indictment.  That  fact  must  in  some  way  appear  I'lom 
the  i)lea  itself,  and  that  the  offenses  charged  in  both  cases  were 
tlie  same  in  law  and  in  fact.  Coinmoiiioeidth  v.  Jloljij,  12  Pick., 
•iOG.  The  question  must  be  determined  by  the  facts  appearing 
from  the  record,  without  the  aid  of  extrinsic  circumstances. 
All  questions  arising  on  demurrer  to  pleadings  must,  of  coiiise, 
be  determined  witliout  rei'erenco  to  any  evidence  tiiat  may 
thereafter  be  given  on  the  trial  of  the  cause.  It  is  not  always 
enough  the  two  indictments  may  appear  to  be  in  precisely  the 
same  words.  That  may  well  be,  anil  j'et  the  oflenses  distinct 
felonies;  as,  for  instance,  wliere  there  are  two  indictmenls  lor 
rape,  it  might  be  the  same  person  committed  a  rape  u[)on  two 
women  of  precisely  the  same  name,  and  an  acipiittal  on  one 
indictment  would  not  bar  a  ]»rosecution  on  another,  unless  it 
was  nuide  to  appear  in  some  way  it  was  identically  llu5  s;iino 
offense.  IJut  the  best,  and  pei'liai)s  the  most  accui'ate,  test 
given  in  the  books  is,  as  before  stated,  Avould  the  evidence  nec- 
essary to  sustain  the  facts  alleged  in  the  second  indictment 
luive  been  suflicient  to  sustain  a  legal  conviction  on  the  lirst 
indictment!'  In  the  case  being  considered  it  is  .so  plain  it  need 
not  be  elaborated  further,  tiiat  proof  defendant  had  J'eceived 
stolen  property  in  Jackson  county,  knowing  it  to  have  been 
stolen,  would  not  iiave  sustained  an  indictment  foi*  I'k-  identi- 
cal same  offense  in  J  'erry  county.  Tbe  jdea  miglil  have  shown, 
]>ad  there  been  tiie  fact,  that  the  Terry  county  circuit  court 
got  jurisdiction  by  change  (.f  venue  to  try  th'iendant  on  a 
})roper  indictment  for  I'eceiving  stolen  goods  in  Jackson  ccmnty, 
and  such  a  plea  would  have  been  a  bar  to  a  prosecution  on  a 
second  indictment  in  Jackson  county  for  the  same  offense. 


CAMPBELL  r.  THE  PEOPLE. 


345 


That  was  not  dono,  simply  because  it  would  liavo  availed 
notliiny.  It  has  been  seen  original  jurisdiction  of  an  oirense, 
like  the  one  charged  in  the  first  count  of  the  indictment  against 
defendant,  is  necessiirily  local,  and  is  confined  to  the  courts  of 
the  county  where  the  olTeuse  is  committed,  and  an  acquittal 
elsewhere  is  as  nothing  in  law.  The  plea  in  this  case  is  in  the 
usual  form  given  where  it  is  lilcd  in  the  same  county  where  tlie 
trial  was  had  on  the  first  indictment,  to  a  second  indictment  in 
the  same  court  for  the  same  olfense.  But  that  is  not  suilicient 
in  a  case  like  the  one  being  considered.  Here  the  plea  is  de- 
fective, because  it  does  not  show,  by  way  of  averment,  that  the 
circuit  court  of  Perry  county  in  any  way,  or  for  any  cause,  ob- 
tained jurisdiction  to  try  defendant  for  the  crime  of  receiving 
stolen  goods,  with  guiUy  knowledge,  in  the  county  of  Jackson, 
and  therefore  it  is  obnoxious  to  the  demurrer. 

A  question  might  arise  as  to  whether  the  plea  miglit  not  bo 
good  as  to  the  second  count  of  tlic  indictment,  whicii  charges 
defendant  with  aiding  to  conceal  stolen  goods.  It  miglit  be 
lie  aided  in  concealing  the  i)roperty  in  Peny  county,  and  that 
fact  would  have  conferred  jurisdiction.  How  the  law  may  be 
on  tliat  (piestion  it  will  not  now  l)e  necessary  to  decide,  for  it 
does  not  appear  from  tlie  ])l('a  the  jn'operty  was  ever  in  Perry 
county.  Tliat  fact  is  jurisdictional,  and  must  ap[)eai',  or  the 
plea  will  be  bad.  It  will  be  observed  the  former  actpiittal 
pleaded  took  place  in  nnother  county,  and  not  within  the  juris- 
diction of  tlie  court  v.'liere  the  second  in<lietment  was  found, 
and  it  is  necessary  the  [)lea  should  show  the  c<jart  had  juris- 
diction to  try  defendant  for  the  identical  olfense  charged  in  the 
second  indictment.  It  is  a|)[)i'eli'Muled  it  must  appear,  from 
tlu!  plea  itsell",  how  the  court  obtained  jurisdiction,  otherwise 
the  pK'ii  will  be  no  bar.  Lord  Jlale  states  the  rule  to  bo,  that 
a  |)l(':i  of  i'oi'mer  accpiittal  is  no  bar  to  an  indictment  for  lar- 
ceny in  the  county  of  (\,  for  though  the  accused  be  acipiitted 
in  I).,  il  may  be  because  the  goods  werone\er  brought  into  that 
county,  and  so  the  felony  in  C,  was  not  in  question. 

Dut  another  view  renders  any  further  consideration  of  this 
brancli  of  the;  case  unnecessary.  The  plea  of  auti'i^foli^  ae^nit, 
it  will  be  observed,  is  to  the  whole  indictment.  Palling  to 
answer  any  one  count  of  the  indictment,  the  [)lea  would  be  bad 
on  demurrer,     Coininonttralth  r.  llWt',  IT  Pick.,  oOo.     As  has 


346 


AMERICAN  CRIMINAL  REPORTS. 


been  seen,  it  was  clearly  bad  as  to  the  first  count  of  the  indict- 
ment, because  it  did  not  show  how,  or  for  what  reason,  the 
circuit  court  of  Perry  county  obtained  jurisdiction  to  try  de- 
fendant for  receiving"  stolen  goods  in  Jackson  county,  knowing 
the  same  to  have  been  stolon.  As  a  matter  of  law,  that  court 
couhl  have  no  original  jurisdiction.  Kad  defendant  i)!(>;uled 
"  not  guilty  "  to  the  first  count  of  the  indictment,  and  "-'/c/yc- 
fo'hs  arqult^''  ivi  to  the  second  count,  which  charges  him  with 
aiding  in  concealing  the  stolen  goods,  then  the  question  Avlietlicr 
the  circuit  court  of  Perry  county  had  jurisdiction  on  the  lirst  iu- 
dictuient  to  try  defendant  for  that  offense,  on  tho  gi'ound  it 
was  an  offense  that  might  be  committed  in  any  county  into 
which  the  property  was  carried  and  concealed,  would  liavo 
been  fairly  pi'esented,  and  might  have  been  definitely  dctoi'- 
mined.  ]]ut  that  was  not  done,  and  the  demurrer  was  pi'{)[)erly 
sustained. 

Passing  now  to  tho  consideration  of  tho  instruction  ;  given 
by  the  trial  court,  it  does  not  appear  from  tho  transcript  ol'  tho 
record  in  this  case  that  moi'O  tlian  one  instruction  was  liivmon 
behalf  of  the  people.  That  has  relation  to  the  foiMii  of  tho 
verdict,  and  it  is  so  cleai'ly  actrarate  no  ([uestion  is  nv.iilc  con- 
cerning it.  On  belinlf  of  defendant  a  g-rcat  nuinl»ei'  of  in- 
structions were  given,  stating  tho  law  very  favoi'aldy  foi-  tho 
defense  souglit  to  biMiKide.  Of  the  insti'uctions  refniuvl  that 
were  asked  for  by  defendant,  it  is  insist(Ml  it  was  error  in  tlio 
court  not  to  give  the  first,  second  and  third  of  the  si^rics  as 
they  api)ear  in  tlic  transcript  of  the  record.  Tiie  lii'st  in- 
struction is  faulty,  because  it  directs  the  attenti(m  of  t!ie  jury 
to  a  particular  pi(>ce  of  evidence,  and  gives  an  undue  impor- 
tance toit,iind  for  the  further  reason  it  gives  a  construction  to 
the  letter  to  which  attention  was  called,  not  wi'rrantcd  by  any 
correct  reading  of  the  sam(>.  The  {jr^sposition  contiiined  in  tlio 
second  charge,  if  d(>fendant  concealed  the  stolen  ])rop(>rty 
'•  with  an  intention  to  save  himself  IVoin  loss,''  is  not  the  law, 
and  that  vicious  clause  rendered  the  whole  instruction  had.  If 
it  be  cone(Mled  the  third  chai'ge  contains  a  correct  pi-inciple  of 
law,  it  couhl  not  have  tho  slightest  api)licatio>i  to  the  facts  of 
the  case,  and  tho  court  very  pi'operly  refused  it. 

In  supi)ort  of  his  motion  for  a  new  trial,  dofimdant  (lied  his 
own  allidavit  of  matters  stated  and  accusations  nuuh'  bv  tho 


stf 
fei 


CAIilPBELL  t'.  THE  PEOPLK 


347 


state's  attoni<\v  in  his  closing  ar^iment  to  the  juiy,  against  de- 
fondiint.  not  warranted  by  any  evidence  in  the  case.  If  the 
.uLorncy  said  all  that  is  imputed  to  him,  his  conduct  in 
ui;it  respect  is  not  free  from  blame.  It  is  no  sort  t)f  justifica- 
tion for  him  tlnit  counsel  for  defendant  may  have  traveled  out 
of  the  rp("  •'!  nn  I  made  stateuuMits  not  warranted  l)v  the  evi- 
dence. I>ii.  iidiK'snot  appear  from  anything  in  this  record 
that  defendant  called  the  attention  of  the  court  to  the  objec- 
tionable language  at  the  time.  Had  he  done  so,  no  doulit  the 
court  vrc  (Id  have  checked  counsel  at  once,  and  admonished 
him  r;>(  tc  repeat  the  objectionable  language.  A  jjart}^  on 
trial  will  not  be  permitted  toreuuiin  ([uiet,  without  calling  the 
attention  of  the  court  to  it,  and  permit  counsel  to  indulge  in 
improper  language,  and  afterwards  assign  the  same  for  error, 
lie  must  object  at  the  outset,  or  his  objection  will  be  deemed 
to  have  been  waived.  Counsel  say,  in  the  case  .it  bar,  that  at 
the  tiuu^  the  objectionable  language  was  being  used,  the  atten- 
tion of  the  trial  judge  was  c:di(>d  to  the  fact,  and  the  judge 
not  only  raJlcMJ  to  eh(\,'k  counsel,  but  gave  him  license  to  pro- 
c'MhI.  Xo  such  <(bj(!clion  is  found  in  the  abstract.  The  tran- 
script of  the  record  has  also  been  examined,  and  no  such  thing 
is  (lis('over(Ml,  if  any  exists.  Failing  to  call  the  iittention  of 
the  court  to  the  imiu'oper  language  at  the  tiiiu!  it  was  used,  it 
is  now  too  late  to  insist  u[)on  it  as  error.  The  fact  it  was  em- 
bodied in  an  ailidavit  in  sup[)oi't  of  ,a  motion  for  a  new  trial 
docs  not  dis[)(>nse  with  the  necessity  for  calling  the  attention 
of  tli(>  court  at  the  time  tliat  counsel  might  he  conlinecl  to  the 
record  in  th(!  argument  of  the  case.  Omitting  to  do  so,  the 
ohjection  cannot  now  prevail.  UlLwii  v.  The  J\(>j>le,  Ui  111., 
2!)t). 

AVithout  entering  npon  any  analysis  of  the  evidence,  it  may 
Ix'said,  wlien  it  is  subjected  to  a  careful  consideration  it  is 
seen  it  fully  justifies  the  verdict.  Ordinarily,  the  (piestion  of 
the  guilt  oi'  innocence  of  the  accused  on  trial  for  ci'ime  is  a  fact 
p(M'uliarly  within  the  pi'ovince  of  the  jury  to  liud.  It  is  the 
duty  of  the  court,  however,  to  see  that  no  injustice  is  done  the 
accused,  and  for  that  reason  th<i  court  must  consider  the  evi- 
dence in  all  criminal  cases  that  come  before  it.  That  has  been 
done  in  this  case,  and  no  reason  L  i^vceive^l  for  disturbing 
the  verdict. 


348 


AMERICAN  CRIMINAL  REPORTS. 


It  has  been  observed  tlie  indictment  contains  two  counts,— 
one  for  receiving  stolen  property,  and  the  other  for  aiding  in 
concealing  stolen  property, —  and  it  is  insisted  a  general  ver- 
dict of  guilty  is  bad.  Both  counts  in  this  indictment  relate 
to  the  same  transaction,  and  the  punishment,  even  if  the 
offenses  are  distinct,  is  precisely  the  same.  Tluit  being  so, 
under  the  decision  of  this  court  in  Lyon  v.  The  People^  OS  111., 
271,  a  general  verdict  is  good  in  law,  and  will  sustain  a  judg- 
ment imposing  a  single  punishment,  as  was  rendered  in  tills 
case. 

Iso  serious  error  is  discovered  in  the  admission  of  testimony 
against  defendant,  that  Avould  justify  any  complaint  on  tliat 
score.  The  suggestion  the  letter  read  in  evidence  was  written 
under  such  circumstances  as  made  it  a  "  privileged  comnunii- 
cation,"  has  so  little  in  its  sui>port  it  need  not  be  remarked 
upon.  On  the  whole  record,  when  considered,  no  error  matci'i- 
ally  affecting  the  merits  of  the  case  is  ])erceived,  and  the  judg- 
ment of  the  cu'cuit  court  must  bo  allirmed. 

Judytaciit  ajjinncd. 


State  v.  Jamks. 

(58  N.  H.,  G7.) 
Larceny:  Value  of  chattel. 

1.  Chattel. —  A  printed  list  of  names  und  dales  is  <a  cliaitel,  but  not  a 

"writing  containing  ovidt'iicc  of  any  existing  debt,"  within  the  .sliitii- 
tory  definition  of  the  sub  jeets  of  larcenj'. 

2.  Value  op  chattel. —  Its  vahie,  us  a  (statutory  subject  f)f  iareeny,  is  its 

niiirkct  value.    To  be  of  tlie  market  value  of  !?'J0  it  must  be  eaiiable  of 
being  sold  for  tiiat  sum  at  a  fuirly-condueted  sale. 

Solicitor,  for  the  state. 
Mat'ston,  for  the  respondent. 

EixGUAAt,  J.  The  (|uestions  reserved  were,  vhctlior  the  list 
was  a  writing  containing  evidence  of  an  existing  (k'l)t,  wltiiiu 
sec.  3,  ch.  2(!<),  Gen.  St. ;  whether,  If  it  was  not  sueii  a  writing,  It 
was  a  chattel  within  said  section;  and,  if  such  a  cliattel, 
whether  evidence  was  admissible  to  pi'ove  it  worth  to  IIkj 
owner  )?2(>,  although  to  others  it  was  oi  no  value. 


STATE  V.  JIcGINNIS. 


349 


The  statute  of  Doccnibor,  1SI2,  so  far  as  material,  was  the 
same  as  sec.  0,  eli.  2(!<),  of  tlie  General  Statutes.  In  Bhmchard 
r.  Fhk,  2  X.  ir.,  308,  4J)<t,  it  Avas  held,  in  construing  the  act  of 
1812,  that  to  make  the  talcini^  of  a  file  of  bills  larceny  it  must 
contain  evidence  of  unsatisfied  debts,  or  subsisting  contracts, 
covenants  or  promises,  or  of  the  discliarge,  pa^'mcnt  or  satis- 
faction of  such  debts. 

AVas  the  list  a  vriting  containing  evidence  of  an  existing 
debt  Avithin  said  section  3?  It  contains  no  evidence  of  a  con- 
tract, promise  or  covenjint  subscril)ed.  If  evidence,  it  must  be 
as  a  book  of  accounts,  but  as  a  Ixjok  of  accounts  it  is  wanting 
in  nearly  all  the  elements  required  by  the  rule  to  make  it  evi- 
dence. Cionmlngs  v.  JVic/io/s,  13  N.  II.,  -120;  Sicaiu  v.  Cheney, 
41  X.  II.,  235. 

It  was  a  chattel.  2  Ttussell  on  Crimes,  00,  75  and  note;  4  Bl. 
Com.,  234;  Blnnchard  v.  Fhl',  before  cited;  Payne  v.  The 
People,  Q*  Johns.,  103;  3  Greenl.  Ev.,  sec,  153;  Bex  v.  Mead, 
4  C.  k  P..  535;  Reijhm  v.  Jforrh,  9  C.  &  R,  347. 

Its  value  as  a  statutory  subject  of  larceny  is  its  market 

value;  and  evidence  that  it  is  worth  f>20  to  its  owner,  and 

Avortli  nothing  to  anybody'  else,  <loes  not  show  its  market  value 

to  1)0  S20.    To  1)e  of  the  market  value  of   s20  it  must  be 

capable  of  being  sold  for  that  sum  at  a  fairly-conducted  sale, — 

at  a  sale  conducted  with  reasonable  care  and  diligence  in 

respect  to  time,  place  and  circumstances,  for  the  purpose  of 

ol)taining  the  highest  price.     Locl'e  v.  State,  32  X.  II.,  106; 

State  V.  Ladd,  id.,  IK);  State   v.    Goodrich,  4G  N.  IL,  18G; 

Coclu'co  V.  Strafford,  51  X.  II.,  481. 

Case  discharged. 


State  v.  McGinxis. 

(37  Ark.,  303.) 

License:  Peddlers. 

License— PEDDT.ERS— Act  imposino  license  is  rNTONSTrruTioNATi.— An 
act  whlcluliscriminatos  against  the  i>rodiict8  nnd  manufactui'es  of  other 
sfiitos,  by  reiiuiriug  peddlers  to  obtain  a  licouse  to  sell  the  same,  ia  un- 
constitutional and  void. 


S50 


a:jerican  criminal  reports. 


Appeal  from  Nevada  Circuit  Court.  Hon.  Dan  W.  Joucs, 
Speciiil  Judge. 

C  B.  Mo/nr,  attorney-general,  for  appellant. 
MonhjoiifU'ij  <(•  ILiinbij,  for  appellee. 

ExoLisu,  C.  J.  On  the  24th  of  January,  ISftl,  Thomas 
^McCrinni:!  was  cliarged  and  convicted  before  a  justice  of  tlio 
peace  of  Nevmlii  county,  "with  the  olFeuse  of  ^oiniii:  fi'om 
place  to  i)hu'0  ]KMldling  and  sellin^^  good^,  wares  and  nierehim- 
<lise,  other  tlian  tlie  g-rowth,  produce  or  manufacture  of  ihi;; 
state,  in  sai<l  county,"  etc.;  fined  .^-JJt),  and  appoaied  to  the  cir- 
cuit ctrart. 

In  tli:?  circuit  com't  a  demurrer  was  inter])osed  to  tlie  elKii-nv, 
which  t'.iL'  court  sustained,  discharged  defendant,  and  the  stac 
appealivl. 

Tlie  statute  provides  that: 

"Whoever  shall  deal  in  selling  of  goods,  wares  or  niereliiin- 
dise,  other  than  the  grovt'th,  ])ro(luco  or  nuiuul'actiiiv  of  this 
state,  by  goiug  from  place  to  place,  either  by  land  or  v.aU'r,  to 
sell  the  same,  is  declared  to  be  a  peddle/."  (iantL's  Dig.,  sec. 
4:J7<i.  etc. 

Other  sections  reiiuiro  jx^ldlers  to  obtain  licens;'',  and  pi'o- 
scribe  the  j»eiuilty  for  selling  without,  etc.  Id.,  sees.  [."iVT,  J-JN."), 
5or)(i-r)l,  14!»1;  Miller's  Dig.,  pj).  4,  n. 

Thci'o  is  no  subseipuuit  act  deliuing  a  peddler,  and  no  itct 
rcfpiiring  ])eddlers  of  goods,  n-ures  or  merchandise,  which  iii'o 
the  growth,  produce  or  manufact;n*e  of  this  state,  to  (jbtaiii 
license. 

The  al)ovc  act  clearly  discriminates  against  the  proiliicis  iiiid 
manufactures  of  other  states,  and  in  favor  oi  the  ])r«i(liicls  mid 
nuuiufa(,'tui'es  of  this  state.  h\  Wr/fo/i.  'i\  St'f<\  1  Otto. -'T">. 
just  such  an  act  of  Missouri  was  held  by  the  supreme  eomi  of 
the  United  States  to  bo  in  conllict  with  the  coniniei-ee  chiiisc 
of  the  constitution  of  the  United  States,  and,  therefore,  null 
and  void.     See  also,  Sfati^  r.  Kutc  Mai'sh^  aido. 

If  tlui  legislature  deems  it  e.\|)ediciit  to  reipiire  |)eil(llers  to 
obtain  license,  and  to  punish  them  for  pechlling  without  license, 
no  diseriniination  must  be  nuule  against  goods,  etc..  of  the 
growth,  produce  or  manufacture  of  other  states,  etc. 

Affli'inid. 


ADAMS  V.  THE  PEOPLE. 


351 


Adams  et  al.   v.  The  Pkople. 


(109  111.,  444.) 

McRDER :  Continuance  —  Intent  —  MnJicn  —  Ecidence  —  Reasonable  doubt  — 
Instruction  as  to  policy  of  the  law,  etc. 

1.  Continuance  —  Absence  of  avitxesses  —  Matkuiauty  of  the  pro- 

I'osKi)  TESTIMONY. —  Preliminary  to  the  trial  of  two  defoudants  on  u 
c'liarf^c  of  murder,  alle;:;ed  to  have  been  committed  on  the  nififlit  of  the 
10th  of  July,  by  compellin}^  the  deceased  to  jump  from  a  railroad  car 
wliile  in  i"ai)id  motion,  tlu^  court  refused  a  continuance  on  behalf  of 
tlie  ai'cnsi'd,  asked  on  the  ground  of.  the  absence  of  two  witnesses  re- 
sidini;  in  Indiana,  by  whom  the  defendiints  expected  to  prove  tliat  such 
witnesses  saw  the  defendants  at  the  town  of  Godfrej',  in  Miidison 
county.  Illinois,  cm  the  eveninj;  of  July  0.  a  place  distant  some  twenty- 
fivr  or  thirty  miles  from  where  the  oifenso  was  charf;i;(nl  to  have  been 
connnittc  1.  Held,  no  i'rror,  as  the  allidavit  failed  to  show  any  incom- 
patil)ility  l)etween  the  fact  alle;^eil.  as  expecte<l  to  be  i)rove(l,  and  the 
commission  of  llie  offense  by  tlie  defen<lants.  Tiie  absent  testimony 
was  immaterial. 

2.  ^VlIAT  CONSTITUTES  MURDER  — OP  THE  INTENT.— Intent  to  kill  docs  not 

enter  into  the  delinition  of  murder.  It  is  enoui^h  if  the  unlawful 
killing  be  done  with  malice  afori'thonght.  either  exprt-ss  or  implied. 

3.  If  a  party  of  men  board  a  railway  car,  and  while  the  train  is  running 

draw  deadly  weapons  on  a  i)assen};er,  and  make  him  hold  up  his  hands 
w)iil<-  they  rob  his  person,  and  then  by  threats  and  intimidation  cause 
liini  to  jnmi)  from  tlie  car  door,  tliey  commanding  him  to  do  so,  and 
he  is  tliereby  killed,  they  will  be  guilty  of  murder.  In  such  case  it  is 
not  eisenlial  tluit  death  should  be  t\\o  i)rol)able  and  reasonable  result  of 
the  a<  t  the  deceased  is  forced  to  do.  It  is  sulUci(>nt  tliat  death  or  great 
boilily  harm  was  the  natural  result.  Forcing  a  person  to  do  an  a<'t 
wlii<'ii  causes  his  death  renders  the  death  the  guillv  deed  <>(  bun  who 
coinpeiled  the  deceased  to  do  tlie  act. 

4.  ^lalice  may  be  inf(>rr(Ml  when  an  act   unlawful  in  itself  is  don(>  deliber- 

ab'ly,  and  with  intention  of  mi-ii-liief  or  great  bodily  harm  to  those  on 
wiiom  it  may  c-hance  to  liubt.  if  death  is  vH'casioned  by  it.  By  the 
st:itute.  if  an  involunta'-\  killing  shall  happen  in  the  tiommission  of  an 
unlawful  act  wbi'-h  in  its  consiMiucnces  naturally  tends  to  destroy  the 
life  of  a  human  being,  or  th(<  act  is  commit(»'d  in  tlie  exccidion  of  a 
felonious  iidcnt,  the  olTense  is  declared  n\urder. 

5.  Ok  tuk  KVini'.NCK  aoainst  one  ciiakuki)  with  mukdeu.— On  the  trial 

of  two  persons  on  a  charge  of  nvurder  comniillcd  on  July  10.  issi),  by 
compelling  a  passeu'^n- to  Jump  fnnn  a  I'ailway  (rain  while  it  wa.s  in 
nuition,  two  witnessi^H  for  tl\>*  people  were  allowe  I  to  testify,  over  an 
objection,  that  tlu\\  naw  the  defendants,  and  two  otiiers.  with  whom 
the  defeudant  <  \\v>i\'  indicted  for  the  nuu'der,  ttigether  on  the  raiiroail 
track  on  July  S,  ISS;t,  and  that  one  of  them  had  a  revolver.  Held,  that 
tiiere  was  no  legal  objection  to  tl\i^  testin\ony. 


imm 


352 


AMERICAN  CRIMINAL  REPORTS. 


6.  In  tho  saino  case,  the  state's  attorney,  in  the  examination  of  one  of 

thest?  witnesses,  in-oihiceil  a  wateh  chain,  and  the  Avitness  said  it  was 
his  <'liain,  and  that  lie  had  it  on  wlien  he  met  tlie  defendants  and  the 
two  otliers  wlio  wore  indicted,  on  tlio  evening  of  July  8, 1883, —  wliich 
was  ()l)jec(('d  to.  ITchl,  that  wliile  tlie  evidence  as  to  the  watch  cliain 
ini!j,ht  laoiiorly  enongli  liave  been  exchided  as  irrelevant,  yet  it  was  not 
suflicieutly  liarmful  to  the  defendants  to  make  its  admission  material 
error.  It  would  not  justify  an  inference  tliat  the  witness  had  been 
robbed  )j}"  tho  four  men. 

7.  So,  too,  one  of  these  witnesses,  in  answer  to  the  inquiry  wliether  there 

was  anything  unusual  to  cause  him  to  remember  tlio  time  of  seeing 
one  of  tho  defendants  on  the  morning  of  Julj'  8,  1883,  said  a  man  was 
found  dead  that  morning, —  a  stock  man,  who  had  fallen  from  a  train. 
Ilelil,  that  tho  concluding  i)art  of  this  evidence  repelled  any  iiiferenco 
that  this  7nan,  too,  had  been  thrown  from  the  train  by  tho  same  men, 
and  its  admission  was  not  error, 

8.  Of  a  reasonahle  doubt. —  On  the  trial  of  one  for  murder,  an  instruc- 

tion for  the  defense  that  the  law  in  regard  to  reasonable  doul)t  applies 
with  greater  force  to  circumstantial  tlian  to  other  classes  of  eviilencc, 
is  erroiieuus,  and  pro])erly  refused. 
0,  It  is  error  in  an  instruction  for  the  defense  to  say  that  if  the  circum- 
stances are  capal)le  of  being  explained  on  a  theory  consistent  with  the 
innocence  of  the  accused,  the  jury  should  acquit.  A  theory  miglit  be 
.assumed  that  the  testimony  as  to  his  guilt  was  false,  and  on  such  a 
theory  there  could  be  an  exjilanaticjn  of  tlio  circumstances  consistent 
with  Ills  innocence. 
10.  And  iiek!;ix,  of  thr  policy  that  many  gl'ilty  mkx  siiour.n  EscArE 

RATIIF.U  THAN  ONE  INNOCKXT  PEllSON  SHOULD  SUFFER. —  On  the  trial  of 

two  ])ersons  upon  a  charge  of  murder,  the  defendants  asked  the  court 
to  instruct  the  jury  tiiat  tho  policy  of  the  law  is,  that  it  is  belter  that 
ninety  and  nine,  or  anj'  number  of  guilty  persons,  should  escajie,  tliaii 
tliat  one  innocent  man  should  be  convicted,  and  that  it  is  not  siilliciciit 
to  authorize  a  conviction  that  the  greater  weight  or  ijrepnnderance  of 
evidence  supports  the  allegations  of  the  indictment, —  whicii  tlie  court 
refused  to  give.  Held,  that  the  instruction  was  properly  refusinl,  tliere 
being  no  policy  of  the  law  on  tho  subject,  or  for  the  considcralion  of 
tho  jury;  that  it  is  not  within  the  puri)ose  of  tho  law  that  any  guilty 
person  shovdd  escape  or  any  innocent  one  be  convicted;  and  that  if  the 
greater  weight  or  preponderance  of  tho  evidence  be  such  as  to  satisfy 
the  jury,  beyond  a  reasonable  doubt,  of  the  defendant's  guilt,  then  it 
would  be  sufficient  to  authorize  a  conviction. 


Writ  of  Error  to  the  Circuit  Court  of  Groeno  County ; 
Hon.  George  W.  Herdman,  Judge,  presiding. 


tho 


Mcssi's.  DooUttlc  (&  English,  for  the  plaintiffs  in  erroi*. 
Mr.  James  IlcCaHney,  attorney-general,  for  the  people. 


ADAMS  V.  THE  PEOPLE. 


353 


]\rr.  Chief  Justice  Siitcldon  delivered  the  opinion  of  the 
court. 

Frank  Adams  .and  Benjamin  F.  Pritchard,  at  the  September 
term,  A.  D.  1883,  of  the  Greene  county  circuit  court,  were  in- 
dicted for  the  crime  of  murder,  and  found  ^niilty,  and  sentenced 
to  imprisonment  in  the  penitentiary  for  the  terms  of  twenty 
and  fourteen  years  respectively.  They  bring  this  writ  of  error 
to  reverse  the  judgment. 

The  refusal  of  a  continuance  is  assigned  for  error.  The 
defendants  were  indicted  on  the  fith  of  September,  1883,  and 
on  the  iVtii  of  September,  1883,  made  their  motion  and  affida- 
\nt  for  a  continuance,  on  the  ground  of  tlie  absence  of  two  wit- 
nesses, who  resided  in  Indianapolis,  in  the  state  of  Indiana,  by 
wliom  they  expected  to  prove  that  said  witnesses  saw  the 
defendants  at  the  town  of  (iodfrey,  in  the  county  of  Madison, 
in  this  state,  on  the  evening  of  the  9tli  of  July,  1883,  the  day 
before  the  night  on  which  the  offense  charged  in  the  indictment 
was  alleged  to  have  been  committed;  that  said  place  was  a  dis- 
tance of  twenty-five  or  thirty  miles  from  the  place  where  the 
offense  was  said  to  liave  been  committed,  and  in  a  different 
direction  from  which  the  train  upon  which  the  offense  alleged 
to  have  been  committed  came.  The  crime  was  charged  in  the 
indictment  to  have  been  committed  on  the  10th  day  of  July, 
1883,  by  forcing  the  deceased,  one  Patrick  Knight,  to  jump 
from  a  freight  car  on  a  certain  railroad  while  the  car  was  in 
motion.  The  alfidavit,  so  far  as  we  can  see,  does  not  show  any 
incompatibility  between  tlie  fact  alleged  as  expected  to  be 
proved  by  the  witnesses,  and  the  commission  by  the  defendnnts 
of  the  crime  charged,  and  we  think  the  motion  for  a  continu- 
ance was  properly  overruled  en  the  ground  of  the  materiality 
of  the  absent  testimony  not  sul.'ciently  ap])earing. 

Objection  is  taken  to  the  adm  ssion  of  the  testimony  of  the 
witnesses  Curtis  and  Thompson.  The  testimony  of  these  wit- 
nesses was  upon  the  point  of  having  seen  the  defendants,  and 
Hogan  and  Ryan,  with  whom  they  were  mdictod,  together  on 
the  railroad  track  on  the  8th  of  July,  and  that  one  of  them  had 
a  revolver.  There  could  be  no  objection  to  this ;  but  in  the 
examination  of  Curtis,  the  state's  attorney  produced  a  watch 
chain,  and  the  witness  said  it  was  his  chain ;  that  he  had  it  on 
when  he  met  these  men,  on  the  evening  of  the  8th  of  July. 
Vol.  IV— 88 


;i5i 


AMERICAN  CRIMINAL  REPORTS. 


This  evidence  as  to  the  watch  chain  might  properly  cnougli 
liave  been  exchuled  as  irrelevant,  but  we  do  not  seo  that  it  was 
suiKciently  harmful  to  the  defendants  to  ninko  its  adini^.Mion 
material  cirror.  It  is  said  the  implication  wouhl  be  that  tlio 
Avitncss  was  robbed  by  these  four  men.  Wo  thiidi  that  avouUI 
be  a  strained  inference  from  the  evidence,  and  one  not  justified. 

Thompson,  in  answer  to  the  inquiry  whether  there  was  any- 
tliin<>'  unusual  to  cause  him  to  remember  the  time  of  seein"' 
llyan  on  Sunday  morning,  July  S,  said  a  man  was  found  dead 
tha  morning  —  a  stock  man  had  fallen  from  tlio  train.  It  is 
said  that  was  calculated  to  produce  the  impression  that  tliis 
man,  too,  had  l>eon  thrown  from  the  tniin  by  these  men;  but 
the  concluding  portion  of  the  statement,  that  a  stock  man  had 
fallen  fi'om  the  train,  repels  such  an  idea. 

It  is  contended  that  the  evidence  does  not  support  the  ver- 
dict. The  witness,  Patrick  Coughlin,  testilied  that  ho  left  (.'hi- 
cago  with  Patrick  Knight,  going  to  St.  Louis;  that  on  tlie  way 
they,  at  (Treendeld,  on  the  line  of  tlio  Cliicago,  Burlington  «fe 
Quincy  Railroad,  got  into  a  box  car  on  a  freight  train  on  that 
raiboad,  in  v.-]Hch  were  Adams,  one  of  the  do feiu hints,  and 
Kyan,  and  as  t!ie  train  started,  Pritchard,  the  otlier  defendant, 
and  Ilogan,  jumped  into  tlie  car,  and  the  doors  were  shut;  that 
some  time  afterwards^  while  the  train  was  running,  the  four 
other  men  "covered''  witn(>ss  and  Knight  with  four  revolvers, 
two  of  them  also  havhig  razors  in  their  left  hands;  that  tlioy 
ordered  witness  and  Knight  to  hold  up  their  hands,  and 
searched  them;  that  tliey  got  nothing  from  witness,  for  lie 
had  nothing,  but  they  took  alxjut  >>'►  from  Kniglit.  After  that 
they  opened  the  door  of  tlu;  ear  and  told  witnes.s  and  Knight 
to  jump;  that  witness  jumped  lirst,  and  some  one  kiclced  him; 
that  witness  was  not  hurt;  that  he  walked  along  a  littk;  way 
and  came  to  the  body  of  Knight;  ho  was  dead;  the  bcnly  was 
lying  at  right  anghss  with  tin;  track,  the  feet  out,  and  the  head 
between  the  ties,  alx)ut  an  inch  and  a  half  or  two  inch(!s  from 
the  rail;  the  back  jxirt  of  his  head  had  been  crushed  in.  The 
testimony  of  this  witness,  if  believed,  wouhl  sustain  the  verdict- 
It  is  insisted  th.it  the  testimony  is  not  entitled  to  credit.  The 
jury  appear  to  have  given  credence  to  it,  and  after  a  careful 
consideration  of  it,  with  the  other  evidence  in  the  case,  and  the 
circumstances  which  are  adverted  to  as  detracting  from  the 


ADAMS  V.  THE  PEOPLE. 


356 


credibility  of  tlio  witness,  avo  find  no  sufficient  reason  for  dis- 
turbinf?  tlio  conclusion  of  the  jury. 

Objection  is  taken  to  the  givin<^  and  rcfusinf^  of  instructions. 
This  instruction  was  given  upon  the  part  of  tlio  people: 

"Tlic  court  further  instructs  the  jury,  for  the  people,  that 
to  prove  the  charge  in  the  indictmcmt  there  need  be  no  laying 
of  luuuls  on  the  j)crson  of  Patrick  Knight,  by  the  defendants, 
to  put  him  from  the  car,  in  order  to  constitute  the  force  therein 
alleged;  but  that  if  defend.ants  did,  by  threats  of  violence  to 
the  person,  intimidation,  or  by  displaying  deadly  weapons  in  a 
threatening  manner,  caur.e  the  said  Patrick  Knight  to  leap  or 
jump  from  the  car  while  in  motion,  as  alleged  in  the  indict- 
ment, under  circumstances  whicli  would  have  caused  a  prudent 
man  to  do  so,  aiul  thereby  lie  was  killed,  as  charged  in  the  in- 
dictment, and  if  the  jury  so  believe,  from  the  evidence,  beyond 
a  reasonable  doubt,  that  such  are  the  facts,  they  should  find  the 
defendants  guilty." 

The  exception  taken  to  this  instmiction  is,  that  it  is  defective 
in  not  having  the  quali(icati(m  that  the  defendants  forced  the 
deceased  to  jump  from  the  car  with  intent  to  kill  him,  or  that 
the  killing  was  the  ))robable  and  reasonable  result  of  such 
jmnp.  Intent  to  kill  (l(x;s  not  enter  into  tlie  definition  of  mur- 
der. It  is  enough  if  the  unlawful  killing  be  with  malice  afore- 
thought, either  express  or  implied.  Nor  was  it  essential  that 
dcati)  should  have  been  the  ])r()bable  and  rensonable  result  of 
tiic  act  whicli  the  defendants  forced  the  deceased  to  d(j.  It  is 
sulllcient  that  death  or  great  bodily  harm  was  the  natural  re- 
sult. Foi'cing  a  person  to  do  an  act  which  causes  his  death 
renders  the  death  the  guilty  deed  of  him  who  comi)elled  the 
deceased  to  do  the  act.  3  Greenleaf  on  Evidence,  sec.  142. 
Malice  may  be  proved  by  evidence  of  gross  recklessness  of 
human  life,  where,  in  any  manner,  the  life  of  anotlier  is 
knowingly,  cruelly  and  grossly  endangered,  whether  by  actual 
violence  or  by  inhuman  privation  or  exposure,  .and  death  is 
caused  t]u':rel)y.  Ibid.,  sec.  117.  Malice  may  be  inferred 
where  an  act  unlawful  in  itself  is  done  deliberately,  and  with 
intention  of  mischief  or  great  bodily  harm  to  those  on  whom 
it  may  chance  to  light,  and  death  is  occasioned  by  it.  2 
Starkie  on  Evidence,  951.  The  definition  of  murder,  by  our 
statute,  is:   "The  unlawful  Icilling  of  a  human  being,  in  the 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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2.2 


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23  WBT  MAIN  STRUT 

WitSTiR,N.Y.  MSN 

(716)«72-4S03 


4^ 


35(5 


AMERICAN  CRIMINAL  REPORTS. 


peace  of  the  people,  with  malice  aforethought,  either  express 
or  implied.  .  .  .  Malice  shall  be  implied  where  all  the  cir- 
cumstances of  the  killing  show  an  abandoned  and  malignant 
heart."  And  in  the  statutory  definition  of  involuntary  man- 
slaughter there  is  this  provision:  ^^ Provided,  always,  that 
where  such  involuntary  killing  shall  happen  in  the  commission 
of  an  unlawful  act,  which,  in  its  consequences,  naturally  tends 
to  destroy  the  life  of  a  human  being,  or  is  committc<l  in  tlio 
prosecution  of  a  felonious  intent,  the  offense  shall  be  deemed 
and  adjudged  to  be  murder."  The  instruction  presents  fully  a 
case  of  murder  as  thus  defined  by  the  statute. 

It  is  the  same  objection,  substantially,  which  is  made  to  tlie 
other  instructions  on  behalf  of  the  people,  except  the  sovcntii, 
which  informs  the  jury  "  that  if  the  defendants  .  .  .  con- 
spired to  rob  Patrick  Knight,  .  .  .  and  with  the  intent  fo 
coi'Scal  said  crime  of  robbery  did  force  him  to  jump,"  etc., 
they  should  find  the  del'cndants  guilty.  The  further  exception 
is  taken  to  this  instruction  that  there  is  nothing  in  the  evidence 
upon  which  to  base  it.  There  was  evidence  of  a  robbery  of 
Knight,  and  that  immediately  upon  its  commission  ho  was 
forced  to  jump  from  the  car.  We  do  not  think  it  can  well  ho 
said  there  is  nothing  in  the  evidence  upon  which  to  base  the 
instruction. 

We  ])ercei  ve  no  error  in  the  refusal  of  instructions  asked  by  tlie 
defendants.  The  first  was  erroneous  in  saying  to  the  jui-y  tliiit 
the  law  in  regard  to  reasonable  doul)t  applies  with  greater  force 
to  circumstantial  than  to  other  classes  of  testimony.  AVo  are 
aware  of  no  such  rule  of  law.  Tliere  was  furtlier  error  in  say- 
ing that  if  the  circumstances  wore  capable  of  being  ex])lainc(l 
on  a  theory  consistent  with  the  innocence  of  the  defendants, 
the  jury  should  acquit.  A  theory  might  be  assumed  that  the 
testimony  as  to  the  defendants'  guilt  was  fal,;o,  and  on  such  a 
theory  there  could  be  an  explanation  of  tlic  circumstances  con- 
sistent with  the  innocence  .of  the  defendants. 

The  second  refused  instruction  asserted  that  the  jiolicy  of 
the  law  is,  that  it  is  better  that  ninety  and  nine,  or  any  lunn- 
ber  of  guilty  persons,  should  escape,  than  that  one  innocent 
man  should  be  convicted,  and  that  it  is  not  sufficient  to  author 
izo  a  conviction  that  the  greater  weight  or  preponderance  of 
evidence  supports  the  allegations  of  the  indictment.     There  is 


PEOPLE  V.  HALL. 


357 


no  policy  of  the  law  upon  the  subject,  or  for  the  consideration 
of  the  jury.  It  is  not  within  the  purpose  of  the  law  that  any 
guilty  person  should  escape,  or  any  innocent  one  he  convicted. 
The  question  for  the  determination  of  the  jury  is  that  of  the 
guilt  or  innocence  of  the  accused,  and  it  is  not  for  them  to  in- 
quire what  is  politic  to  do.  If  the  greater  weight  or  prepon- 
derance of  the  evidence  be  such  as  to  satisfy  the  jury,  beyond 
a  reasonable  doubt,  of  the  defendants'  guilt,  then  it  would  be 
sufficient  to  authorize  a  conviction. 

The  third  refused  instruction  laid  it  down  as  the  duty  of  a 
juror  not  to  yield  to  the  mere  importunities  or  persuasions  of 
other  jurors,  but  only  to  yield  to  his  own  sound  and  mature 
judgment,  based  solely  upon  a  fair  and  candid  consideration 
of  the  evidr  ice.  Tliis  instruction  was  properly  refused,  as 
holding  out  encouragement  to  the  jurors  to  adhere  obstinately 
to  tlioir  individual  opinions,  and  not  to  be  influenced  by  the 
views  of,  or  deliberation  with,  their  fellow  jurors. 

Finding  no  material  error  in  the  record,  the  judgment  must 

he  a  Hi  r mod. 

Judgment  affirmed. 


People  v.  Hall. 
(48  Midi.,  482.) 

Murder  by  poison:  Degree  of  murder — Order  of  proof — Malice  —  Draxc- 
ing  jur;/  —  Witnesnes  —  Separate  examination  —  Credihilitij  —  Convic- 
tion of  fcloni/  —  Heading  books  to  jiiri/  —  Expert  evidence. 

1.  Deoree  or  jniRDER. —  Muv<lor  hy  poisoninpj  is  murder  in  the  first  dogroe, 
iuid  a  jury  should  ho  so  charf^od  where  the  information  does  not  state 
its  def;reo  or  the  mode  of  its  commission;  and  whei  j  a  jury  does  not 
liud  that  a  crime  is  in  the  first  degree  it  is  error  for  tht  judge  to  punish 
it  its  if  it  were. 

!?.  Coiipus  DEMCTI.— In  prosecutions  for  homicide  the  corpus  delicti  must 
he  sliown  first,  so  far  as  the  testimony  ran  be  separately  given,  and 
especially  so  far  as  can  ho  shown  from  post-mortem  examinations. 

3.  Mamc'E. —  In  a  prosecution  for  murder  proof  of  malice  alone  has  no  tend- 

ency to  i)r()ve  that  death  was  caused  hy  crime,  until  the  fact  of  death 
hy  criminal  means  has  been  shown ;  proof  of  malice  may  then  bccomo 
relevant  to  show  a  motive. 

4.  I)RAWiN(t  OP  JURY.— The  jury  act  of  1877  (act  125  of  1877)  requires  the 

names  of  juroi-s  to  be  drawn  in  turn  from  septu-ate  parcels  oontaining 


f-^m'i 


358 


AMERICAN  CRIMINAL  REPORTS. 


names  from  each  precinct  in  the  county.  There  is  also  a  provision 
for  ordering  talesmen  to  be  drawn  from  a  single  township  where  the 
emergencies  of  the  term  do  not  leave  time  for  summoning  thorn  from 
the  county  at  large.  But  a  jury  drawn  threo  weeks  before  trial  for  a 
particular  case  of  homicide  is  illegal  if  taken  from  only  part  of  the 
townships  in  the  county  and  those  not  adjoining  the  county  scat  nor 
including  the  locality  of  the  offense. 

5.  Witnesses  to  be  sepahated, —  Resjjondent's  request,  in  a  case' of  hom- 
icide, that  the  witnesses  may  be  examined  separately  and  not  in  one 
another's  presence,  should  bo  gi-anted,  if  seasonably  made. 

C.  Apuino  names  op  wiTNlfSSES  TO  INFORMATION. —  In  a  criminal  prosecu- 
tion the  names  of  witnesses  cannot,  against  objection,  bo  added  to  the 
information  without  a  showing  that  they  were  not  known  earlier,  and 
in  time  to  give  defendant  notice  in  season  to  anticipate  their  presence 
before  trial. 

7.  Testimony  as  to  conduct  ok  prosecutor. —  It  is  error,  in  trying  a 

criminal  case,  to  exclude  questions  as  to  the  conduct  of  the  prostKutioii 
in  seeking  to  induce  the  witness  to  suppress  testimony  or  voluntet-r 
imi)roi)er  testimony. 

8.  Expert  testimony  —  Scientific  books,  etc.— Experts  cannot  be  exam- 

ined upon  theories  that  are  contrary  to  the  uncontradicted  facts  of  the 
case;  sucli  testimony  is  legally  admissible  on  the  gi-ound  only,  that 
ordinary  jurymen  have  no  such  sjiecial  knowledge  as  will  enable  Wwm 
to  understand  the  facts  shown,  without  interpretiition ;  it  nmst,  there- 
fore, be  given  by  living  witnesses  who  can  be  cross-examined;  and  the 
reading  of  scientific  books  to  the  jur}',  as  evidence  ui  itself,  is  erroi'. 

Error  to  Oakland. 
Information  for  murder. 

Camprkll,  J.  Hall  brings  error  from  a  judgment  on  convic- 
tion for  the  murder  of  his  wife.  The  case  was  twice  tried  — 
first  in  June,  18S1,  and  afterwards  in  October,  18S1, —  the  liist, 
jury  having  disagreed.  We  find  in  the  outset  a  defect  wlii(!li 
docs  not  seem  to  have  been  noticed  by  the  parties,  but  which, 
under  our  advisory  duty  in  ciiminal  cases  under  the  statute,  we 
cannot  very  well  overlook-  in  passing  upon  the  exceptions.  Tho. 
information,  which  conforms  to  the  statute  and  is  in  the  usual 
form,  merely  charges  murd(!r,  witliout  charging  in  what  way 
it  was  committed  or  in  what  degree.  Under  the  statute;  the 
jury  must  find  the  degree  of  the  offense,  and  it  cannot  hv. 
treated  as  murder  in  the  first  tiegreo  unless  expressly  so  found. 
Murder  by  poison,  under  tlie  statute,  is  always  murchn-  in  I  he 
first  degree,  and  the  jury  should  have  been  so  chai-ged.  They 
were,  however,  by  this  charge,  left  at  liberty  to  lind  the  degree, 
and  did  not  find  it  to  bo  the  first  dotfrco. 


PEOPLE  V.  HALL, 


359 


The  sentence,  however,  expressly  treated  it  <as  murder  in  the 
first  degree,  not  only  by  so  naming  it,  but  also  by  inflicting  the 
statutory  punishment  for  that  crime.  If  this  error  had  been 
assigned,  we  might  have  been  compelled  to  determine  to  what 
extent  the  proceedings  could  be  opened  or  reversed.  As  there 
are  other  defects  which  must  lead  to  a  new  trial,  we  need  not 
now  go  further  in  this  discussion  beyond  the  suggestion  tluit 
this  is  only  one  of  several  indications  that  the  trial  lacked  some 
of  the  elements  of  a  calm  judicial  proceeding,  and  that  nuitters* 
appear  to  have  been  lost  siglit  of  which  the  rules  governing 
the  administration  of  justice  required  those  conducting  the 
prosecution  to  keep  in  mind. 

The  first  of  these,  and  one  which  in  several  different  ways 
Avas  brought  to  the  attention  of  the  court  below,  but  ruled 
against,  was  the  rule  wliich  requires  the  corpus  delicti  to  bo 
shown  befoi'o  any  other  testimony  is  directed  against  the  pris- 
oner. In  many,  and  perhaps  in  most,  cases  the  order  of  proof 
is  not  very  essential.  But  in  cases  of  homicide,  and  in  others 
where  justice  demands  it,  the  prosecution  sliould  not  bo  allowed 
to  proceed  furtlier  until  the  death  and  its  character  shall  have 
been  shown,  as  far  as  the  testimony  can  be  separately  given, 
{\x\'\  especially  so  far  as  can  bo  shown  from  the  ])ost-mortcm 
examinations.  Under  our  system  of  informations  the  prosecu- 
tion must  always  have  knowledge,  in  advance  of  the  trial,  con- 
cerning the  case  intended  to  be  made  out,  and  there  can  be  no 
good  reason  for  ])ursuing  the  course  which  was  allowed  to  bo 
taken  here.  Instead  of  showing  in  the  outset  the  death  of 
Mrs.  Hall,  the  examinations  of  her  remains  and  their  several 
analyses,  and  the  medical  opinions,  indicating  or  not  indicat- 
ing death  by  poison,  the  lirst  testimony  introduced  was  for  the 
oidy  and  obvious  purpose  of  creating  a  prejudice  against  the 
accused  by  i-aising  suspicions  —  Avhich  this  particular  testimony 
was  not  legally  sullicient  to  establish  — that  he  had  been  at 
some  former  })eriod  intimate  with  another  woman.  The  testi- 
mony did  not  tend  to  prove  any  lack  of  harmou}"  or  kindness 
between  the  ])risoner  and  his  wife  before  her  death;  but  had  it 
done  so,  it  was  improper  to  show  it  until  the  evidence  that  she 
ha<l  b(>en  poisoned  and  died  from  poison  had  been  introduced. 
All  the  nuilico  inuiginable  is  no  proof  in  itself  tending  to 
show  that  death  was  caused  by  crime.    When  there  is  legal 


r-l 


300 


AMERICAN  CRIJUNAL  REPORTS. 


evidence  loading  to  the  belief  that  homicide  has  been  com- 
mitted, the  motive  of  the  criminal  becomes  important,  and  the 
relations  of  parties  may  therefore  become  relevant.  This 
difficulty  was  not  confined  to  the  question  of  the  order  of 
])roof,  for  in  \vhat  was  done  in  charging  and  in  refusing  to 
charge  the  jury  did  not  receive  that  careful  instruction  which 
the  cii'cumstances  called  for,  against  allowing  the  crime  itself 
to  be  presumed  or  to  be  ascertained  by  any  but  distinct  and 
adequate  proof. 

Before  referring  to  the  more  definite  defects  in  the  proceed- 
ings at  the  trial,  some  notice  must  be  taken  of  the  preliminary 
proceedings. 

Wo  have  not  sufficient  facts  before  us  to  render  it  proper  to 
say  whether  the  venue  should  have  been  changed  on  the  show- 
ing made,  which  is  not  brought  up  with  the  record.  But  the 
proceedings  to  summon  jurors  wore,  we  think,  in  violation  of 
the  jury  law  of  1S77.  That  law,  in  order  to  i)roveut  unfair- 
ness or  ino(]uality  in  tho  distribution  of  jurors,  required  the 
names  of  jurors  from  each  precinct  to  be  kept  in  sei)arate  par- 
cels, and  one  name  to  be  drawn  from  each,  before  a  second 
name  should  be  drawn  from  any,  and  so  successively,  in  like 
manner,  Jiowever  many  jui'ors  should  be  drawn.  Laws  1877, 
pp.  113,  11-1.  There  is  only  one  case  in  wiiich  a  diU'erent  rule 
is  permitted.  It  is  })rovided  by  section  -'  '  (amending  Conq), 
L.,  g  <5U0l)  that  when  gi'an<l  or  petit  jurors  .  avo  not  boon  sum- 
moned, or  a  sufficient  number  of  qualified  jurors  shall  fail  to 
appear,  tho  court  may  cause  a  sufficient  numbiu*  to  be  sum- 
nioned  forthwith,  and  may,  for  the  purpo.se  of  ol)l.aining  a  jury 
or  talo.imon  near  tlui  ct)unty  seat,  direct  from  which  township 
or  supervisor  district  such  jurors  shall  be  drawn.  The  evident 
object  of  this  is  to  enal)le  the  court  to  call  neighboring  juroi-s 
when  tho  pressure  of  business  will  not  allow  time  to  summon 
them  from  tho  county  at  large.  This  section,  before  its 
amendment,  left  it  in  tho  [)owerof  tho  court  to  allow  tho  sher- 
iff to  summon  such  jurors  as  he  chose,  or  to  have  jurors 
drawn  from  tho  county  at  largo.  Its  object  was  exi)lained  in 
People  V.  Jones,  34  Mioh.,  215,  as  designed  to  meet  tho  exigen- 
cies of  the  term,  and  not  of  partieular  causes.  In  tho  present 
case  the  jury  was  ordered  to  be  drawn  from  eleven  specified 
townships  (out  of  the  twenty-five  townships  and  such  other 


t( 

aq 


II' 


ti 
n 


PEOPLE  V.  HALL. 


301 


supervisor  districts  as  existed  in  Pontiac),  more  than  three 
weeks  before  the  time  of  their  appearance,  and  therefore  with 
a  much  longer  interval  than  that  allowed  for  summoning  the 
ordinary  panel  for  a  term.  The  order  does  not  purport  to  be 
made  for  the  purpose  of  getting  jurors^  near  the  county  sect, 
but  on  the  contrary  does  not  rc(iuire  a  ay  juroi-s  to  be  drawn 
<Mthcr  from  the  city  or  township  of  Pontiac,  nor  from  the  four 
a<ljacent  towns  lying  south,  southwest,  west  and  northwest, — 
while  the  towns  actually  selected  included  six  towns  separated 
from  Pontiac  townsliip  by  entire  intervening  tiers  of  towns, 
and  distant  from  six  to  over  fifteen  miles  at  the  nearest  point 
of  contact.  The  order  excluded  the  entire  vicinage  of  the  al- 
leged offense,  not  only  leaving  out  the  town  of  Springfield, 
but  every  one  of  the  eight  towns  surrounding  it,  two  of  which 
border  or  corner  on  Pontiac.  The  order  was  not  made  by  the 
judg(!  of  his  ov"i  motion  for  general  purposes,  but  on  the 
suggestion  of  the  prosecuting  attorney  for  this  particular  case, 
hi  which  it  is  entitled.  The  jury  was  therefore  neither  a  jury 
of  the  vicinage  nor  a  jury  of  the  county  at  large,  nor  one 
near  tlie  county  seat,  nor  one  desired  by  tlie  judge  himself  for 
the  general  purposes  of  the  term.  It  was  therefore  not  sanc- 
tioned by  law. 

The  defendant  before  the  testimony  was  put  in  requested 
tiiat  the  witnesses  might  be  examined  separately  and  not  in 
presence  of  each  other,  but  his  re(][uest  was  denied.  There  is 
no  difference  of  opinion  among  the  authorities  on  the  ])oint 
that  such  a  request,  seasonably  made,  should  not  be  refused. 
There  is  some  difference  as  to  whether  such  a  refusal,  standing 
alone,  should  necessarily  bo  held  illegal  so  as  to  require  a  re- 
versal. Without  going  so  far,  inasmuch  as  we  may  dispose  of 
the  case  on  the  other  grounds,  we  need  only  say  that  there  is 
nothing  in  this  record  which  tends  to  show  that  the  request 
was  not  a  proper  one  to  Le  granted. 

Tlie  court  allowed  the  names  of  several  witnesses  to  be  added 
to  the  information  during  the  trial,  under  objection,  without 
any  showing  that  they  were  not  Irnown  earlier  and  in  time  to 
give  defendant  notice  in  season  to  anticipate  their  presence  bo- 
fore  trial.  Tho  sLctuto  is  explicit  that  this  shall  be  done  before 
trial  Avhero  witnesses  are  known.  Sec.  7938.  This  is  not  a 
mere  formality;  and  wlierever  it  has  been  provided  for  by 


■;Vr^l      '■' 


302 


AMERICAN  CRIMINAL  REPORTS. 


statute  it  lias  been  treated  as  a  substantial  right.  Hog.  v.  Frost, 
9  C.  &  P.,  147;  Hex  v.  Lord  Gordon,  2  Doug.,  591.  Two  of 
these  witnesses  were  the  chemists  who  were  emplo^'ed  by  the 
prosecution  to  make  an  analysis  of  portions  of  the  body  of  the 
deceased.  Others  of  them  were  called  to  testify  concerning 
the  i)rcparations  for  making  it.  One  Avas  called  on  to  testify 
to  alleged  conversations  with  defendant  more  than  a  month 
before  the  trial. 

It  appeared  b}^  the  testimony  of  Drs.  Prescott  and  Duflicld 
that  they  were  employed  by  the  prosecution  about  three 
months  befoi'o  the  second  trial,  and  it  appeared  furtlier  that 
their  testiuumy  was  the  chief  testimony,  and  practically  the 
only  testimony,  tending  to  show  arsenic  in  the  body.  The 
others  were  of  less  consecpicnce. 

So  far  as  llickcy  is  concerned  it  appeared  by  his  own  cross- 
examination  that  he  was  confined  in  jail  for  the  felony  of 
breaking  and  stealing  8^00  from  a  safe,  and  had  served  a  term 
in  state's  prison  for  a  previous  felony  several  years  befoi-e. 
From  a  careful  examination  of  the  record  we  think  it  at  least 
highly  j)robal)le  that  the  conviction  was  had  on  this  man's  tes- 
timony. It  is  very  evident  that  if  the  defendant  bad  been 
able  to  hunt  up  the  history  of  such  a  witness,  the  search  would 
have  been  important. 

In  regard  to  the  chemists  the  facts  show  that  on  the  first 
trial  the  testimony  failed  to  convict,  and  that  the  analysis 
which  Avas  made  ])reviously  discovered  no  poison.  Aftei-  the 
failure  of  the  first  trial  the  body  was  examined  again,  being 
found  in  another  place  under  very  suspicious  circumstances, 
with  no  evidence  except  that  of  llickey  distinctly  bringing  tlie 
removal  home  to  defendant.  Ther  >  was  testimony  from  the 
medical  witnesses  having  a  tendency  to  show  that  the  poison 
last  foimd  might  have  been  put  in  the  body  after  death;  and 
there  were  facts  showing  bad  blood  between  defendant  and 
some  of  his  neighbors  Avho  were  somewhat  zealous  against 
him.  Practically  the  case  on  the  second  trial  n-as  a  new  case;, 
and  the  defendant  wr.s  not  informed  of  the  witnesses  to  it 
until  the  trial  began.  This  was  an  unfair  suppression,  in  con- 
travention of  law. 

We  think  it  was  error  to  prevent  witnesses  from  answering 
questions  as  to  conduct  of  the  prosecution  in  seeking  to  induce 


PEOPLE  V.  HALL. 


mt 


them  to  suppress  testimony  or  volunteer  improper  testimony 
not  admissible  and  not  asked  for.  There  is  no  more  reason  for 
exomptin*^  tlie  prosecution  than  the  defense  from  scrutiny  con- 
cerning tampering  with  witnesses, 

Tlierc  were  several  questions  answered  by  medical  experts 
upon  theories  put  to  them  wliich  were  contrary  to  the  positive 
and  uncontradicted  facts.  Such  questions  were  improper  and 
misleading.  Some  other  rulings  might  be  referred  to,  but 
we  do  not  thinlc  it  inn)ortant  to  dwell  upon  them  except  as  to 
some  refusals  to  charge. 

A  witness,  Clifford,  was  called  ostensibly  to  show  that  Hall 
was  concerned  in  the  removal  of  his  wife's  body  from  the 
grave-yard.  lie  stated  that  llall  did  not  know  it  was  to  be 
put  where  it  was  fouiul,  but  to  a  series  of  questions  concerning 
Hall's  complicity  in  it  he  refused  to  answer  on  the  ground  that 
it  might  crimimite  him.  The  court  refused  to  tell  the  jury 
they  iiad  no  right  to  infer  anything  against  Hall  from  Clifford's 
silence.  This  was  clearly  wrong.  Clitford  had  not  testified  to 
any  fact  whatever  indicating  that  he  or  any  other  person 
naniod  either  removed  the  body  or  had  any  ])art  in  it.  lie  re- 
fused to  answer  at  all  bcvoiul  the  single  answer  that  Hall  did 
not  know  where  it  was  to  be  placed.  H  moved  without  Hall's 
consent  it  would  have  been  a  crime.  If  otherwise,  it  might  or 
might  not  be,  according  to  its  purpose. 

If  the  silence  of  a  witness  can  be  treated  as  evidence  against 
a  party  Avho  cannot  compel  him  to  answqr,  it  would  not  be  dif- 
ficult to  make  out  a  case  against  any  one  on  mere  insinuations. 
It  was  the  duty  of  the  court  to  caution  the  jury  against  this, 
but  this  was  not  only  refused,  but  that  removal  was  dwelt  on 
far  enough  to  lead  them  to  regard  it  as  significant,  which  ren- 
dered the  caution  itself  more  necessary. 

Wo  thi'ik,  also,  that  it  would  have  been  highly  proper  that 
the  couru  should,  when  recpiested,  have  called  the  attention 
of  the  jury  to  II ickey's  position  as  affecting  his  credit.  For- 
niorl}^  he  could  liave  not  been  sworn  at  all.  The  statute  did  not 
abrogate  entirely  the  effect  of  conviction  of  an  infamous  crime 
on  a  witness,  but  still  allows  it  to  be  shown  as  a  distinct  fact 
bearing  on  his  credit,     (/onip.  1..,  Jj  tyiHW. 

We  observe  that  resort  was  had  to  reading  medical  books  to 
the  jury,  the  record  not  showing,  however,  what  matters  were 
thus  laid  before  them.     If  this  was  anything  it  was  evidence, 


-WT^JWf^ 


364 


AMERICAN  CRIMINAL  REPORTS. 


and  probably  evidence  which  was  used  with  some  effect.  The 
practice  is  not  permissible.  Scientific  or  expert  testimony 
must  be  given  by  living  witnesses,  who  can  be  cross-examined 
concerning  their  means  of  knowledge,  and  can  explain  in  lan- 
guage open  to  general  comprehension  what  is  necessary  for  the 
jury  to  know.  The  only  legal  reason  for  allowing  the  evi- 
dence of  opinions  is  found  in  the  presumption  that  an  ordinary 
juryman  or  other  person  without  special  knowledge  could  not 
understand  the  bearing  of  facts  that  need  interpretation. 
Medical  books  are  not  addressed  to  common  readers,  but  re- 
quire particular  knowledge  to  understand  them.  Every  one 
knows  the  inability  of  ordinary  persons  to  understand  or  dis- 
criminate between  symptoms  or  groups  of  symptoms,  which 
cannot  always  be  described  to  those  who  have  not  seen  tlioni, 
and  which  with  slight  changes  and  combinations  mean  some- 
thing very  different  from  what  they  mean  in  other  cases.  The 
cases  must  be  very  rare  in  which  any  but  an  educated  pliysi- 
cian  could  understand  detached  passages  at  all,  or  know  how 
much  credit  was  due  to  either  the  author  in  general  or  to  ])ar- 
ticular  parts  of  his  book.  If  jurors  could  be  safely  trusted 
with  the  interpretation  of  such  books,  it  is  hard  to  see  on  wliat 
princii)le  living  witnesses  would  be  required.  Scientific  men 
are  supposed  to  be  able,  from  their  study  and  experience,  to 
give  tlie  general  results  accepted  by  the  scientific  world,  and 
the  extent  of  their  knowledge  is  tested  by  their  poisdiial 
examination.  But  the  continued  changes  of  view  br<>,  r'lt 
about  by  new  discijveries  in  most  matters  of  science,  and  the 
necessary  assumption  by  scientific  writers  of  some  tecliiiieal 
knowledge  in  their  readers,  render  the  us(>  of  such  woiks 
before  juries  —  especially  in  detached  ])ortions  and  sclcclcsd 
passages  —  not  only  misleading  but  dangerous.  Tlie  weiglit  of 
authority  as  well  as  of  reason  is  against  tlieir  reception. 

While  we  feel  it  oiu*  duty  to  direct  a  reversal  and  a  new  trial, 
if  the  prosecuting  autiiorities  think  it  pi'oper  to  have  one,  we 
think  the  case  is  not  of  such  a  character  that  the  prisoner 
should  be  deprived  of  bail. 

The  judgment  must  be  reversed  and  the  prisoner  remanded 
to  the  custody  of  the  sheriff  of  Oakland  county,  with  the 
right  at  any  time  of  being  let  to  bail  in  the  sum  of  $3,000. 


GooLET  and  Makston,  JJ.,  concurred. 


IIOPT  J'.  PEOPLE. 


3C5 


'  HoiT  V.  Pkoplk. 

(104U.  S.,  631.) 
Murder:  Drunkenness — Instructions imoriting. 

1.  Intoxication  may  be  shown. —  Where,  under  a  statute  fixing  the  de- 

grees of  crime  in  murder,  and  making  provision  tliat  wilful,  deliberate, 
malicious  and  premeditated  killing  shall  be  murder  in  the  first  degree,  if 
it  ai)pear  that  the  accused  was  intoxicated  at  the  time  of  the  killing,  it 
is  iK'rmissible  to  olTor  testimony  of  that  fact,  leaving  it  for  the  jury  to 
determine  whether  Ills  mind  was  in  a  condition  capable  of  deliberate 
premeditation. 

2.  An  instruction  not  reduced  to  writing  must  refer  to  authority.— 

Where  a  statute  requires  instructions  to  be  reduced  to  writing  before 
being  given  by  the  judge  to  the  jury,  and  provides  that  such  instruc- 
tions shall  be  taken  as  part  of  the  record  and  deemed  subjects  of  appeal, 
the  judge  cannot  gi^'C  an  instruction  not  reduced  to  writing  otherwise 
than  by  citing  the  page  of  the  book  or  law  magazine  whence  it  is 
taken. 

Error  to  the  Supremo  Court  of  the  Territory  of  Utalx. 

3fr.  R.  Mc Bride  and  J//*.  J.  G.  Sutherlard,  for  plaintiff  in 
error. 

The  Solicitor-general,  contra.- 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

The  phiintifT  in  error  was  indicted,  convicted  and  sentenced 
for  the  crime  of  murder  in  tlie  first  decree  in  the  district  court 
of  the  tliird  judicial  district  of  the  territory  of  Utah,  and 
})rcsented  a  bill  of  exceptions,  wliich  was  allowed  by  the  pre- 
siding judge,  and  from  his  judgment  and  sentence  appealed  to 
the  supreme  court  of  the  territory,  and  that  court  having 
affirmed  the  judgment  and  sentence,  he  sued  out  a  writ  of 
error  from  this  court.  Of  the  various  errors  assigned,  we  have 
found  it  necessary  to  consider  two  only. 

The  Penal  Code  of  Utah  contains  the  following  provisions : 
"  Every  murder  perpetrated  by  poison,  lying  in  wait,  or  any 
other  kind  of  Avilful,  deliberate,  malicious  and  premeditated 
killing;  or  committed  in  the  perpetration  of,  or  attemrt  to 
perpetrate,  any  arson,  rape,  burglary  or  robbery;  or  perpe- 
trated from  a  premeditated  design  unlawfully  and  maliciously 
to  effect  the  death  of  any  other  human  being,  other  than  bim 
who  is  killed ;  or  perpetrated  b}-^  any  act  greatly  dangerous  to 
the  lives  of  others,  and  evidencing  a  dei)raved  mind  regard- 
less of  human  life, —  is  murder  in  the  first  degree ;  and  any 


3G0 


AMERICAN  CRIMINAL  REPORTS, 


other  honiicldo,  committed  under  such  circjinustancos  as  would 
have  constituted  murder  at  common  hnv,  is  nuu-der  in  the  sec- 
ond degree."  Sec.  89.  "  Every  person  guilty  of  muidcr  in 
the  lirst  degree  shall  suffer  death,  or,  upon  the  recomiiujiida- 
tion  of  the  jury,  may  bo  imprisoned  at  hartl  labor  in  the  })eni- 
tentiary  for  life,  at  the  discretion  of  the  fourt;  and  every 
person  guilty  of  murder  in  the  second  degree  shall  be  impris- 
oned at  hard  labor  in  the  penitentiary  for  not  less  than  live 
nor  more  than  iifieen  years."  Sec.  90.  Compiled  Laws  of 
Utah  of  1S7(!,  pp.  585,  5S(). 

By  the  Utali  C-odo  of  Criminal  Procedure,  the  charge  of  the 
judge  to  the  jury  at  the  trial  "must  bo  reduced  to  writing  bo- 
fore  it  is  given,  unless  by  the  mutual  consent  of  the  parlies  it 
is  given  orally"  (sec.  257,  cl.  T);  the  jury,  u[)on  retiring  for 
deliberation,  may  take  with  theui  the  written  instructions  given 
(sec.  28'.>);  and  '' when  written  charges  have  been  presented, 
given  or  refused,  the  questions  presented  in  such  charges  need 
not  be  excepted  to  or  embodied  in  a  bill  of  exceptions,  but  tlie 
written  charges  or  the  rejmrt,  with  the  indorsements  siiowing 
the  action  of  the  court,  form  pai't  of  the  i-ettord,  and  any  error 
in  the  decision  of  the  court  thereon  may  by  taken  advantage 
of  on  appeal,  in  like  manner  as  if  presented  in  a  bill  of  excep- 
tions."    Sec.  3i:*,  Laws  of  Utab  of  187S,  pp.  115,  121,  12(1. 

It  api)oars  by  the  bill  of  excei)tions  that  evidence  was  intro- 
duced at  the  trial  tending  to  sliow  that  the  defendant  was  in- 
toxicated at  the  time  of  the  alleged  homicide. 

The  defendant's  iifth  request  for  instructions,  which  was 
indorsed  "refused"  by  the  judge,  was  as  follows:  "Drunken- 
ness is  not  an  excuse  for  crime;  but,  as  in  all  cases  where  a 
jury  find  a  defendant  guilty  of  murder  they  have  to  determine 
the  degree  of  crime,  it  becomes  necessary  for  them  to  inquire 
as  to  the  state  of  mind  under  which  ho  acted,  aiul,  in  the  pros- 
ecution of  such  an  inquiry,  his  condition  as  drunk  or  sober  is 
proper  to  be  considered,  where  the  homicide  is  not  committed 
by  means  of  poison,  lying  in  wait,  or  torture,  or  in  the  perpe- 
tration of,  or  attempt  to  pei-petrate,  arson,  rape,  robbery  or 
burglary.  The  degree  of  the  oll'ense  depends  entirely  upon 
the  question  whether  the  killing  was  wilful,  deliberate  and 
premeditated;  and,  upon  that  question,  it  is  pro|)er  for  the  jury 
to  consider  evidence  of  intoxication,  if  such  there  be;  not  upon 
the  ground  that  drunkenness  renders  a  criminal  act  less  crimi- 


r 


HOPT  V.  PEOPLE. 


sef 


nal,  or  can  be  received  in  extenuation  or  excuse,  but  upon  the 
irround  that  the  condition  of  tlio  defendant's  mind  at  the  time 
tiio  act  was  committed  must  bo  inquired  after,  in  order  to 
justly  determine  tlio  question  as  to  whetlier  his  mind  was  ca- 
pable of  tliat  (k']il)eration  or  premeditation  which,  according  as 
tliey  are  absent  or  presont,  determine  tlie  degree  of  the  crime." 

Upon  tliis  subject  tlie  judge  gave  only  the  following  written 
instructit)n:  "A  man  who  voluntarily  puts  himself  in  a  con- 
dition to  have  no  control  of  his  actions  must  1i;  held  to  intend 
the  conso(]nences.  The  safety  of  the  community  requires  this 
rule.  Intoxication  is  so  easily  counterfeited,  and  when  real  is 
,;u  often  resorted  to  as  a  means  of  nerving  a  person  up  to  the 
commission  of  some  desperate  act,  and  is  withal  so  inexcusable 
in  itself,  that  law  has  never  recognized  it  as  an  excuse  for 
crime." 

The  instruction  recpiestcd  and  refused,  and  the  instruction 
"iven,  being  matter  of  record  and  subjects  of  appeal  under  the 
provision  of  the  LFtah  Code  of  Criminal  Procedure,  sec.  015, 
above  quoted,  their  correctness  is  clearly  open  to  consideration 
in  this  court.     Young  v.  Martin,  8  AVall.,  !?54. 

At  common  law,  indeed,  as  a  general  rule,  voluntary  intoxi- 
cation affords  no  excuse,  justification  or  extenuation  of  a  crime 
committed  under  its  influence.  United  States  v.  Drew,  5  Mass., 
28;  United  Stafea  v.  3 fc Glue,  1  Curt.,  1;  Commonwealth  v. 
TIawl'inH,  3  (iray  (>Iass.),  4(5;);  People  v.  Rorjers,  18  K  Y.,  9. 
l?ut  when  a  statute  establishing  different  degrees  of  murder 
requires  deliberate  premeditation  in  order  to  constitute  nmrder 
in  the  first  degree,  the  question  whether  the  accused  is  in  such 
a  condition  of  mind,  by  reason  of  drunkenness  or  otherwise, 
as  to  be  capable  of  deliberate  premeditation,  necessarily  be- 
comes a  material  subject  of  consideration  by  the  jury.  The 
hnv  has  been  repeatedly  so  ruled  in  the  supreme  judicial  court 
of  Massachusetts  in  cases  tried  before  a  full  court,  one  of  which 
is  reported  upon  other  points  {Cammonwcalth  v.  l)ori<e>j,  103 
Mass.,  412),  aiul  in  well-considered  cases  in  courts  of  other 
states.  Plrtle  v.  State,  9  Humph.  (Tenn.\  003;  Jlaile  v.  State, 
11  id.,  1.^)4;  /u'l;/  v.  Comviomoealth,  \  CJrant  (Pa.)  Cas.,  484; 
Iveenan  v.  C'ommonioealth,  44  Pa.  St.,  oo;  Jones  v.  Common- 
wealth, 75  id.,  403;  People  v  lielcncia,  21  Cal.,  544;  Peoj)le  v. 
Williams,  43  id.,  344;  State  v.  Johnwn,  40  Conn.,  130,  and  41 
id.,  584 ;  J* if/man  v.  State  of  Ohio,  14  Ohio,  555,  557. 


368 


AMERICAN  CRIMINAL  REPORTS. 


And  the  same  rule  is  expressly  enacted  In  tlio  Penal  Code  of 
Utah,  sec.  20:  "  No  act  committed  by  a  person  whih)  in  a  state 
of  vohmtary  intoxication  is  less  criminal  by  reason  of  his 
having  been  in  such  condition.  But  whenever  the  actual  ex- 
istence of  any  particular  purpose,  motive  or  intent  is  a  lUM^cssary 
element  to  constitute  any  particular  species  or  de^r(>e  of  crime, 
the  jury  may  take  into  consideration  the  '  M-t  that  the  accused 
was  intoxicated  at  the  time,  in  determining  the  j)ui  pose,  mo- 
tive or  intent  with  which  he  committed  tlu;  act."  ('oiupiled 
Laws  of  Utah  of  IS  TO,  pp.  r)('.S,  5(5!). 

The  instruction  retpiested  by  the  defendant  clearly  and  ac- 
curately stated  the  law  applicable  to  the  case,  and  the  refusnl 
to  give  that  instruction,  taken  in  connection  with  the  uiupial- 
ifled  instruction  actually  given,  necessarily  preju«liced  him 
'with  the  jury. 

One  other  error  assigned  presents  a  question  of  practice  of 
such  importance  that  it  is  proper  to  express  an  oi)inion  upon 
it,  in  order  to  prevent  a  repetition  of  the  eri-or  upon  anotiier 
trial.  By  the  provisions  of  the  Utah  Code  of  Criminal  Pro- 
cedure, already  referred  to,  the  charge  of  the  judge;  to  tlio  jury 
at  the  trial  must  be  reduced  to  writing  before  it  is  giv(Mi,  unless 
the  parties  consent  to  its  being  given  orally ;  and  the  written 
charges  or  instructions  form  part  of  the  record,  may  be  taken 
by  the  jury  on  retiring  for  deliberation,  and  are  subjects  of 
appeal.  The  object  of  these  provisions  is  to  re<piire  all  tli(! 
instructions  given  by  the  judge  to  the  jury  to  be  reduc(Ml  to 
writing  and  recoriknl,  so  that  neither  the  jui'v,  in  deliber- 
ating upon  the  case,  nor  a  court  of  lu-ror,  upon  exceptions  (ti- 
appeal,  can  have  any  doubt  what  those  instructi(ms  wen;;  and 
the  giving,  without  the  defendant's  consent,  of  charges  or 
instructions  to  the  jury,  which  are  not  so  i-ediiced  to  writing 
and  recorded,  is  error.  Fevitcr  v.  State,  33  Ind.,  2S3;  Stutc  of 
Missouri  V.  Coojx'r,  45  iVfo.,  04;  People  v.  Sanfon/,  43  Cal.,  2!>; 
Gifev.  People,  1  Col., 00;  Stater.  Potter,  15  Kan.,  3(»2. 

The  bill  of  exceptions  shows  that  the  presiding  judge,  after 
giving  to  the  jm*y  an  instruction  recpieste*!  in  writing  by  the 
defendant  upon  the  general  burden  of  proof,  proceeded  of  his 
own  motion,  and  without  the  defendant's  consent,  to  I'cad 
from  a  printed  book  an  instruction  which  was  not  rechiced  to 
writing,  nor  filed  with  the  other  instructions  in  the  case,  but 
was  referred  to  in  writing  in  those  words  only:  "  Follow  this 


McDANIEL  V.  THE  COMMONWEALTH. 


309 


from  ]\raoazino  American  Law  Tlegistor,  Jul}'',  180S,  page  550;" 
and  that  to  tlie  instruction  so  given  an  exception  was  taken 
and  allowed. 

This  Avas  a  clear  disregard  of  the  provisions  of  the  statute. 
The  instruction  was  not  reduced  to  writing,  filed,  and  made 
part  of  the  record,  as  the  statute  required.  If  the  book  was 
not  given  to  the  jury  when  they  retired  for  deliberation,  they 
did  not  have  with  them  the  Avliole  of  the  instructions  of  the 
judge,  as  the  statute  contemplated.  If  they  were  permitted 
to  take  the  book  with  them  without  the  defendant's  consent, 
that  would  of  itself  be  ground  of  exception.  Merrill  v.  JS^ari/, 
10  Allen  (^Fass.),  410. 

For  these  reasons,  the  judgment  must  be  reversed,  and  the 
case  remanded  with  instructions  to  set  aside  the  verdict  and 
order  a  now  trial. 


McDaxiel  v.  TnE  Co^rMONWEALTn. 

(TTVa.,  281.) 
SIi'RDER :  First  degree  —  Second  degree. 

1.  Pr.vctic'E  —  New  tiuvls. —  Much  caution  is  used  by  this  court  in  granting 

a  now  trial  wlicro  it  is  aski'il  Ht)lcly  on  the  ground  that  the  verdict  is 
contrary  to  evidence,  great  weight  being  given  to  the  verdict  of  the 

2.  0.\rs  ox  rnosECUTiON  to  snow  murder  is  in  the  first  degree.— To 

constitute  the  olTense  of  murder  in  the  first  degree,  the  kilUng  nuist  be 
predetermined,  and  not  xmder  momentary  impulse  of  passion;  tliough 
the  determination  need  not  have  existed  any  particuhu'  Uuigtli  of  time. 
Prima  facie,  all  liomicide  is  murder  in  the  second  degree.  Onus  on 
prosecution  to  raise  the  offense  to  the  first  degree. 

3.  What  the  record  must  show. — To  sustain  a  verdict  of  murder  in  the 

first  degree,  the  recoid  must  show  proof,  direct  or  inferential,  sullicient  to 
justify  the  jury  in  coming  to  the  conclusion  that  the  death  of  the  de- 
ceased was  the  ultimate  result  which  the  concurring  will,  deliberation 
and  premeditation  of  the  prisoner  sought. 

Wm.  B.  T'lnsleij  and  Z.  S.  Manje,  for  plaintiff  in  error. 
F.  S.  Blair,  attorney -general,  for  the  commonwealth. 

HiNTON,  J.,  delivered  the  opinion  of  the  court. 
This  is  a  writ  of  error  to  a  judgment  of  the  circuit  court  of 
the  county  of  Amherst,  convicting  Frederick  McDaniel,  the 
Vol.  rv  — 24 


m 


370 


AMERICAN  CRIMINAL  REPORTS. 


plaintiff  in  error,  of  murder  in  tlie  first  degree,  and  sentencing 
him  to  be  hanged  therefor.  The  accused  moved  the  court  to 
sot  aside  tlie  verdict  and  grant  him  a  new  trial ;  but  the  court 
overruled  the  motion,  and  to  this  ruling  tlie  prisoner  excepted. 
The  1)111  of  exceptions  contains  a  certificate  of  what  is  stated  to 
be  tlie  "facts  and  all  the  facts  proved  upon  the  trial."  Tlie 
only  assignment  of  error  is  the  refusal  of  the  coiu't  to  set  aside 
the  verdict  and  to  award  a  now  trial. 

Upon  an  application  of  this  kind,  this  court  is  always  lf)th 
to  disturb  the  judgment  of  the  trial  court.  On  this  point, 
Christian,  J.,  delivering  the  opinion  of  the  court  in  l^ri/ors 
C(xs<?,  27  Gratt.,  1010,  said,  "this  court  has  always  acted  with 
great  caution  in  granting  new  trials  in  castss  where  the  new 
trial  is  asked  solely  upon  the  ground  that  the  verdict  is  con- 
trary to  the  evidence,  and  great  weight  is  always  given,  and 
justly  so,  to  the  verdict  of  the  jury  and  judgment  of  the  court 
in  which  the  case  is  tried.  Tlie  eases  arc  very  rare  in  which 
this  court  interferes,  and  it  is  only  in  u  case  wluM'o  tlu^  (nidoiice 
is  plainly  insullicient  to  warrant  the  linding  of  tho  jury.''  I 
fully  recognize  the  salutary  intluence  of  this  ruhs  and  liaw^  no 
])urpose  to  relax  its  operation.  l>ut  I  think  we  may  remand 
this  case  for  a  new  trial  without  being  amenable-  to  the  charge 
of  violating  its  spirit  or  provisions  in  the  si)ecial  ciiruiiistanc(>s 
of  this  case.  I  [)roceed  to  state  as  brielly  as  I  can  sonu?  gen- 
eral doctrines  of  the  law  of  homicide,  which  will,  I  think,  ma- 
terially assist  us  in  ari'iving  at  a  correct  conel'isinn  upon  this 
point.  Every  homicide  under  our  statute  is  yy/v'^/^^/'^^'A-  a  case 
of  murder  in  the  second  degree.  And  it  is  incumlxMit  u|t<»u 
the  commonwealth,  in  a  case  like  the  present,  where  the  olb'iist' 
was  not  committed  by  any  of  tho  speciilc  means  emnuci-- 
ated  in  tho  statute,  that  is,  "  by  poison, lying  in  wait,  imprison- 
ment or  starving,  nor  in  the  commissic  u  of,  or  attempt  to 
commit,  arson,  rape,  robbery  or  burglary,"  in  order  to  elevate 
it  to  murder  in  the  first  degree,  to  prove  by  evidence.  (mIIkt 
direct  or  circumstantial,  beyond  rational  doubt,  that  the  killing 
was  "wilful,  deliberate  and  premeditated."  And  on  the  (»tlicr 
hand,  the  l)urden  is  upon  the  accused,  if  ho  would  reduce  the 
offense  below  murder  in  tho  second  <legree,  to  sh(>w  the  absences 
of  malice  and  the  other  mitigating  circumstances  necessary  for 
that  purpose. 


McDANIEL  V.  THE  COMMONWEALTH. 


Oil 


Xow  to  constitute  a  "wilful,  deliberate  and  premeditated 
killing,"  it  is  neecssaiy  that  tiie  killing  should  have  been  done 
on  purpose,  and  not  by  accident  or  without  design;  that  the 
accused  must  have  reflected  with  a  view  to  determine  wlicther 
he  would  kill  or  not,  and  that  he  must  have  determined  to  kill, 
as  the  result  of  that  reflection,  before  he  does  the  act  —  that  is 
to  say,  the  killing  must  be  a  predetermined  killing  upon  con- 
sideration, and  not  a  sudden  killing  upon  the  momentary  ex- 
citement and  impulse  of  passion,  upon  provocation  given  at 
the  time,  or  so  recently  before,  as  not  to  allow  time  for  reflec- 
tion; and  this  design  to  kill  need  not  have  existed  for  any 
pjirticular  length  of  time,  it  may  l)o  formed  at  the  moment  of 
the  commissifm  of  the  act.  K'ni'ft^  Gfi^e  and  note,  2  Ya.  Cas., 
84;  l]7>J/r;ror<r.s  <\is>;  (i  Kand.,  T-H ;  Jvik'-s  Case.  1  Leigh, 
5!»S;  JIUFx  ('<Ks,\  2  Graft.,  .'!).');  Iloicirx  Case,  20  Gratt.,  O'.)"; 
Wn'r//>fs  Case,  .'5:5  (Jratt.,  ssf ;  ]\'n)//>rs  Case,  T.")  A^a.  11.,  01*. 
"With  these  familiar  principles  of  the  law  of  homicide  in  mind 
we  now  come  to  examine  the  facts  of  this  case. 

From  the  cerf  ificate  thereof,  it  appears  tliat  the  prisoner,  Avho 
livi'il  in  a  cabin  in  the  yard,  and  u])()n  the  hind  of  the  <leceased, 
near  Pedlar  Mills,  in  the  county  of  .Vndierst,  went  on  the  2+tli 
day  of  January,  18S2,  to  a  mil)  a  few  miles  distant,  and  that 
one  of  the  horses  which  he  drove  to  the  wagon  on  that  occa- 
o'nm  was  loaned  trt  him  by  the  deceased;  that  he  retui'ned 
Avilli  the  wagon  about  two  hours  after  sundown,  and  that  at 
that  time  the  deceased  was  absent  from  home;  that  the  wagon 
AVi's  then  sent  for  a  load  of  wood,  a  small  s(m  of  the  prisoner 
driving  it.  It  I'eturned  with  the  wood  a  little  v.  idle  after  dark, 
and  the  prisonei'  commenced  unhitching  the  team,  when  the 
deceased  went  out  to  the  wagon,  and  may  have  assisted  in  un- 
hitching. A  quarrel  ensued  between  the  ])risoner  and  the  de- 
coaseil,  both  of  whom  were  in  li(pior,  although  not  drunk. 
Tile  deceased  had  ♦aken  a  drink  at  a  negro  man's  cabin  just 
bt'fore  night.  The  dece:>s(Ml  charged  that  the  prisimer  had 
neii'leeted  his  horse  in  not  feeding  him  during  the  dav.  Loud 
and  violent  language  was  used,  in  the  course  of  which  the 
jirisoiuM'gave  the  lie  to  thedeceasedas  to  the  charge  of  not  feed- 
ing his  horse.  The  deceased  ai)i)lied  harsh  and  profane  language 
to  the  ]M'isoncr.  The  prisoner  having  unhitched  the  horses 
carried  them  to  the  creek  to  water  them.    After  the  prisoner 


3T2 


AMERICAN  CRIMINAL  REPORTS. 


got  buck  with  the  horses  from  the  creek,  which  was  some  <lis- 
tiince  oir,  lie  led  the  horses  around  the  road,  just  outside  of  the 
fence,  on  the  way  to  the  stable,  and  when  he  came  to  the  wood- 
pile by  the  side  of  the  yard-fence,  the  deceased,  whoso  wife 
had  vainly  tried  to  detain  him  in  the  house,  came  towards  the 
fence  and  towards  the  prisoner  with  a  walking-stick  of  dog- 
Avood,  light  and  not  long,  in  his  hand;  that  whilst  his  wife 
was  trying  to  detain  him  in  the  house,  the  deceastul  said  he 
icouhl  not  stand  what  the  p/usoner  had  said.  She  followed  liiui 
to  the  fence.  There  was  a  stick  used  in  plowing,  commonly 
called  a  leai'lnf/stiel;  about  four  feet  and  a  half  long,  and  about 
three  and  a  half  inches  in  circumference,  of  seasoned  white  oak, 
lying  on  tiie  wood-}>ile.  And  this  stick  the  prisoner  ])ieke(l  up. 
That  the  deceased  demanded  to  know  why  the  priscuier  stood 
holding  the  stick  in  his  hand;  to  which  the  prisoner  said:  "If 
vou  come  here  I  Avill  show  vou."  The  fence  around  the  vard 
at  this  })oint  was  a  low  one,  not  more  than  about  two  and  a 
half  feet  high,  so  that  a  man  could  step  over  it,  and  this  ])oint 
Avas  about  twelve  or  lifteen  yards  from  the  house  of  the  de- 
ceased. This  was  about  Jifteen  or  twenty  minutes  aftei"  the 
lirst  quarrel  at  thi^  wagon.  The  deceased  raised  his  sticlc  to 
Avard  olf  a  blow  from  the  prisoner,  and  maybe,  ho  struck  at  or 
struck  the  lU'isoner.  The  prisoner  then  stepped  over  the  fence, 
struck  at  the  deceased  and  knocked  the  walking-stick  out  of  his 
hand;  and  with  the  bearing-stick  struck  the  deceased  two  blows 
over  the  head.  From  the  llrst  blow,  which  Avas  above  tli(!  left 
eye,  the  deceased  was  a})parently  made  insensilde,  l)ut  did  not 
fall.  The  second  blow  fractured  and  indented  the  skull  beliiiid 
and  above  the  left  ear.  He  never  si)oko  afterwards,  and  died 
Avithin  about  two  hours  from  the  ed'ects  of  the  blows. 

These  being  all  the  facts  proved  on  the  trial,  as  the  jiitlge 
certities,  do  they  make  out  a  case  of  "  wilful,  deliberate  and 
premeditated  killing ?" 

The  prisoner  certainly  killed  the  deceased,  and  it  is  equally 
certain  that  this  was  not  accidiMitally  <lone  by  him.  I>ut  this  is 
not  enough  to  constitute  a  case  of  murdei*  in  the  first  degree. 
]>efore  Ave  can  pronounce  him  guilty  of  murder  in  the  lirit 
degree  Ave  nuist  be  able  to  iuul,  in  the  certiiicate  of  facts, 
proof,  dii'cct  or  inferential,  suflicient  to  justify  the  jury  in  (oin- 
in":  to  the  conclusion  that  the  death  of  the  deceased  was  the 


McDANIEL  V.  THE  COMMONWEALTH, 


373 


ultimate  result  which  the  concurring  will,  deliberation  and  pre- 
meditation of  the  prisoner  sought.  Jones''  Case,  1  Leigh,  (>11. 
If  we  fail  to  liiul  this  measure  of  proof  the  case  falls  short  of 
murder  in  tlic  first  degree.  For  it  is  laid  down  and  helieved 
to 'be  undoubted  law,  that,  in  all  cases  of  slight  and  insufficient 
provocation,  if  it  may  be  reasonably  inferred  from  the  wea]ion 
made  use  of,  or  the  manner  of  using  it,  or  from  any  other  circum- 
stance, that  the  party  intended  merely  to  do  some  gi'oat  bodily 
liarm,  such  liomicide  will  bo  murder  in  the  second  degree,  in 
lilce  manner  as  if  no  provocation  luid  been  given,  but  not  a  case 
of  uup'der  in  the  first  degree.     Davis'  Cr.  L.,  99. 

In  tliis  case  there  liad  been  a  quarrel  between  the  prisoner 
and  tlie  dec(>ased,  wliilst  lie  and,  porha[)s,  the  deceased  were 
unliitoliing  tlie  liorses,  but  there  was  no  disposition  shown  by 
tlie  })i'isoner  to  strike  tlu'  <leceased  eitlier  with  Ids  lists  or  Avitli  a 
Avca|)()n  at  tluit  time.  On  the  contrary,  he  unhitches  tlie  horses, 
leads  tliem  to  Avater,  and  is  in  the  act  of  quietly  leading  tliom 
to  the  stable,  wlien  just  as  lie  arrives  at  the  wood-pile,  wliore, 
doubtless,  the  wagon-load  of  wood  had  just  been  deposited,  lie 
peiveives  the  deceased,  in  spite  of  the  entreaties  of  his  wife, 
armed  with  a  walking  stick,  coming  towards  him  and  bent 
ui)on  having  a  diflieidty  with  him.  In  this  condition  of  alTaii';-, 
instead  of  selecting  from  the  load  of  wood  a  stick  of  wood, 
one  blow  with  which  would  have  been  certain  death,  ho  stops 
and  ])icks  up  a  stick  of  c(>nij)ai':<tively  insignilicant  prop; )rt ions, 
which  he  finds  lying  on  tlio  wood-pile.  It  is  true  that  when 
the  deceased  asked  him  why  he  stood  there  holding  that  stick 
in  his  hand,  he  replied,  ''If  you  come  here  I  will  show  you,"' 
I>iit  this  language,  in  the  light  oF  what  subseijuently  happened, 
can  only  be  interpreted  to  mean  something  like  this,  namely: 
"Whilst  I  shall  not  seek  you,  yet  if  you  shall  attack  me  with 
that  cane,  I  shall  repel  your  attack  with  this  stick.  This  lan- 
guage, instead  of  revealing  a  deliberate  and  preconceived  i)ur- 
pose  to  kill,  would  imply,  it  seems  to  me  it  might  well  l)e 
argued,  that  in  the  event  the  deceased  kei)t  away  from  liiin.  it 
was  not  his  purpose  to  bring  al)out  a  dilHculty.  At  any  rate  I 
do  not  think  that,  from  this  language,  even  if  coupled  with  the 
blows  inflicted  on  the  deceased,  without  anv  other  acts  or 
declarations  shedding  light  upon  the  intention  of  the  prisoiuM*, 
the  jmy  were  warranted  in  finding,  or  that  this  court  would 


0»: 


AMERICAN  CRIMINAL  REPORTS, 


be  justified  in  holding,  that  the  prisoner  killed  the  deceased 
in  pursuance  of  a  deliberate  and  preconceived  purpose  to  kill 
him,  and  that,  therefore,  this  was  a  case  of  murder  in  the  lirst 
degree. 

It  is  not  intended  to  intimate  in  anything  that  has  been  said 
in  this  ojjinion  that  the  stick  used  by  the  prisoner  in  his  en- 
counter Avith  the  deceased  was  not  a  deadly  weapon,  for  the 
fatal  effect  of  its  use  in  this  case  but  too  surely  establishes  its 
deadly  character  when  used  by  a  person  of  the  prisoner's 
strength,  nor  is  it  intended  in  anywise  to  contravene  that  wise 
and  wholesome  rule,  "  that  a  man  must  be  taken  to  int  nd  that 
which  he  does,  or  Avhieh  is  the  nature  and  necessary  coiis(!- 
queiK'o  of  his  act."  Mm-pJufH  C<m\  2:?  Gratt.,  972 ;  /////'.v  rW.sv, 
2  (iratt.,  .")!).■),  All  that  I  do  mean  to  say  is,  that  giving  to  tliis 
rule  its  jn'oper  scope,  in  the  meager  and  peculiar  circumstances 
of  this  particular  case,  tliis  court  is  not  warrantrnl  in  presum- 
ing fi'om  the  mere  use  of  this  weapon,  witliout  any  words 
otlior  tlian  those  heretofore  mentioned,  or  circumstance  either 
l)cfoi'(i  or  after,  or  at  the  time  of,  th(!  Icilling,  going  to  show  the 
intention  of  the  piisoner  that  the  j)ur[)os(^  of  the  pi'isoiu>r  was 
not  eitiier  to  foi'cil)ly  repel  the  attack  of  tlie  deceased  nor  to 
indict  grievous  bf)dily  harm  upon  him,  but  to  kill  liim. 

For  these  reasons  I  am  of  opinion  that  the  judgment  of  tlio 
cii'cuit  court  of  Andierst  county  be  reversed  and  aiinu]i(>d,  the 
verdict  of  the  jury  set  aside,  and  that  a  new  trial  be  awarded 
the  plaintilf  in  error. 


RicHAnosoN-  and  Fauxtl]:uov,  JJ.,  concurred  in  the  opinion 
of  Ilinton,  J.         ^ 

Lkwis,  p.,  and  Lacv,  J.,  dissented. 

The  order  was  as  follows: 

Tliis  day  came  again  as  well  as  the  ])lainti(f  in  error  ]>y  liis 
counsel,  as  the  attorney-general  on  beiialf  of  the  coi.inu)n- 
wcaltli,  and  the  court  having  matur(;ly  considered  the  tran- 
script of  the  record  of  the  judgmentaforesaid  and  the  arguments 
of  counsel,  is  of  opinion,  for  reasons  stated  in  writing  and  liled 
Avith  the  record,  that  the  judgment  of  the  said  cii'cuit  court  is 
ei-roneous  in  refusing  to  set  aside  the  verdict  of  the  jury  and 
to  grant  a  new  trial  to  the  plaintilf  in  error. 


STATE  OF  NEVADA  v.  KING. 


3Y5 


ill 


lid 

Ml- 
llO 

its 
•r's 
iso 


1S(!- 


/■s/\ 


('(' 


1111- 


W.IS 

1'  U> 


It  is  tlicroforc  considered  by  tlic  court  that  the  said  judg- 
ment be  revei'sod  and  annulled,  the  verdict  of  the  jury  set 
aside,  and  a  new  trial  awarded  the  plaintiff  in  error. 

Which  is  ordered  to  be  certilied  to  the  said  circuit  court  of 
the  county  of  Amherst. 

JRevei'secl. 


State  of  !Nevada  v.  Charley  IIino. 

(10  Nov.,  007.) 

MuKDER:  IiKlictmcnt  —  Challenge  of  jurors  —  Conscientious  convictions  — 

Vrcdibilitij  of  witness. 

1.  MnniKU  — iNOU'TMENT  FOR  — WU.FUL,  DELIBERATE  AND  PREMEDITATED  — 

MalU'K  AKoirvrnouutiT. —  In  roviewing  an  indictment  for  murder, 
/(('/(/,  llir.t  cliuif^ing  the  liomifide  to  have  heen  with  "malice  afore- 
th( )ii;:;li  I, "  is  tiuitanumnt  to  an  avoriucnt  tliat  the  act  was  "  wilful,  delib- 
erate and  jireiiK'ditated." 

2.  Tiie  jiUowaiue  of  a  challenge  for  implied  bias  is  not  the  subject  of  an 

exceiition. 

3.  Gei.t.iial  ou  PARTicrr.AR  CAUSE  OF  CHALLENGE  — Conscientious  opin- 

U)Ns. —  A  juror  was  excused  upon  the  ground  that  he  entertained  sudi 
(•oii.sriciitiuus  o]>inioiis  concerning  capital  punishment  as  would  ])re- 
clude  his  Ihiding  defendant  giiilty  ot  an  offense  punishable  with  death. 
i/(7(/,  that  the  objection  to  the  juror  did  not  go  to  the  general  cause  of 
challenge,  that  lie  was  dis([uali)ied  from  serving  in  any  case,  but  to  the 
l)iirtkii!ar  cause,  that  he  was  dis(iualiried  from  serving  on  the  case  on 
triiil. 

4.  CREDiniLiTV  OF  WITNESSES  —  INSTRUCTION.— In  reviewing  an  instruction 

relative  to  the  credibility  of  a  witness  jointly  indicted  with  defendant, 
held,  that  the  attention  of  the  jury  may  be  directed  to  the  peculiar 
circumstances  surrounding  any  witness  tliat  are  proper  to  be  considered 
in  determining  the  weight  to  be  attached  to  his  testimony. 

X,  A.  Iiii<'lne)\  for  appeUant. 
M.  A,  Murphy,  for  res[)ondent. 

By  the  court,  Bklkxap,  J. 

A])pellant  was  convicted  of  the  crime  of  murder  of  the  first 
degree  and  sentenced  to  be  executed.  He  appeals  from  the 
judgment  and  from  an  order  overruling  his  motion  for  a  new 
trial.  The  first  assignment  of  error  arises  upon  the  action  of 
the  court  in  overruling  a  motion  in  arrest  of  judgment,  founded 
upon  the  alleged  insulficicncy  of  the  indictment  to  support  a 
judgment  of  conviction  of  murder  of  the  first  degree. 


376 


AMERICAN  CRIMINAL  REPORTS. 


The  indictment  charges  that  the  defendants  Charles  IIin£r  and 
Tang  Yan,  "  on  the  Sth  day  of  May,  A.  D.  1881,  or  tlioreabouts, 
and  before  the  finding  of  this  indictment,  at  the  said  connty  of 
Humboldt,  state  of  Nevada,  without  autliority  of  law,  with 
malice  aforethought  killed,"  etc.  The  statute  defining  the 
degrees  of  murder  provides,  '"all  murder  wliich  shall  be  ])Ln'- 
l)etrated  by  poison,  or  lying  in  wait,  torture,  or  by  any  other 
other  kind  of  wilful,  deliberate  and  premeditated  killing,  or 
Avhich  shall  be  committed  in  the  perpetration,  or  attempt  to 
perpetrate,  any  ai-son,  rape,  robberv  or  bui'glar}',  shall  bo 
deemed  murder  of  tlie  first  degree ;  and  all  other  kinds  of  nmr- 
der  shall  be  deemed  murder  of  the  second  degree.    .     .    ." 

Frtmi  this  definition  of  murder  of  tlio  first  degree,  it  is  ai'gued 
that  as  the  indictmeiit  failed  to  avor  wilfulness,  delibei'ation 
and  premeditation,  Avhich  are  essential  constituents  of  the  criiuo 
of  murder  of  the  first  dcigive,  it  does  not  sup[)ortthe  judgment 
rendered.  Tiie  statute  declares  that  the  indictment  shall  be 
sufficient  if  it  can  be  miderslood  therefrom  "  that  the  act  or 
omission  charged  as  the  olfeiise  is  clearly  and  distinctly  set 
forth,  in  ordinary  and  concise  language,  without  repetition,  and 
in  such  a  manner  as  to  enable  a  pei'sonof  common  uuflerstand- 
ing  to  know  what  is  intended."     Sec.  2^^'2'>^,  Comp.  L. 

The  indictment  meets  all  of  the  rctpiirements  of  this  section 
of  the  statute;  it  follows  the  form  prescriluKl  l>y  the  legislature 
for  indictments  for  murder  in  charging  the  act  to  have  been 
done  with  "malice  aforethought,"  and  such  charge  is  tanta- 
mount to  an  averment  that  the  act  was  "wilful,  delilterate 
and  ])remeditated."  People  v.  Dohin,  9  Cal.,  57*1;  People  i\ 
Jf ((/'/■(()/,  10  id.,  309;  Ptvjde  v.  Va/iee,  21  id,,  100;  iSfatc  r. 
77iompson,  12  Xev.,  110;  Sfafe  v.  6'/-a:/<r,  id.,  3U(». 

The  next  pohit  relied  upon  is  the  allowance  of  a  challenge 
l)y  the  district  attorney  for  implied  bias  to  one  .Tames  A.  Itob- 
inson,  who  had  been  returned  u[)on  the  venire,  and  who  was 
excused  upon  the  ground  that  he;  entertained  such  conscien- 
tious o})inions  concerning  capital  punishment  as  would  preclude 
liis  finding  a  defendant  guilty  of  an  olfense  punishable  with 
death. 

In  State  v.  Za?'lin,  11  K'ev.,  '514,  and  in  State,  v.  J*/u'!<7tar//, 
15  id.,  79,  this  court  held  that  the  allowance  of  a  challenge  for 
implied  bias  was  not  the  subject  of  an  exception.     So  it  has 


STATE  OF  NEVADA  v.  IIING. 


been  repeatedly  held  by  the  supremo  court  of  California,  iind.ir 
a  statute  similar  to  ours.  Peo^de  v.  Jlui'p/tt/,  45  Cal.,  137;  Peo- 
p/c  V.  Cutta,  49  id.,  107;  People  v.  Vunfjue^,  id.,  500;  People  v. 
Athei'toH,  51  id.,  11)5. 

The  reason  ui)on  which  this  ruling  is  based  is  well  stated  in 
People  i\  MuipJoj^  15  Cal.,  112,  in  the  following  language: 

"J»y  tlie  criminal  practice  act  (sec.  i;5o),  it  is  provided  that 
an  exce])ti()u  may  be  taken  to  the  decision  of  the  court  upon  a 
matter  of  law  in  distdhncliKj  a  clidlhtuje  to  a  juror  for  uupl'ied 
h'ui.s.  Th(ia(;lion  of  the  court  in  (</Aj//.v*/iiy  such  a  challenge  is 
not  included. but  is  omitted, an<l  e.r  tndiixtria  omitted;  in  other 
words,  excluded  by  the  statute  itr.elf  as  forming  the  subject  of 
an  excei)tion.  This  distinction  was  pointed  out  by  the  attor- 
ney-general in  People  r.  Steuxirt,  7  Cal.,  110,  but  was  then 
ai)i)ai'ently  overlooked  by  the  court;  at  least  it  was  not  ad- 
verted to  in  the  opinion  delivered  in  that  case.  The  reason, 
and  it  is  a  sensil)le  one,  upon  which  the  statute  proceeds,  is 
that  when  a  competent  jury,  comi)osedof  the  recpiisite  number 
of  persons,  has  been  impaiu'led  and  sworn  in  the  case,  the  pur- 
pose of  llie  law  in  that  I'espect  has  been  accomplished;  that 
tlioiigh  in  the  impaneling  of  the  jmy  one  competent  person  1)0 
rejected,  yet,  if  another  competent  pers<m  has  been  substituted* 
in  his  stead,  no  injury  has  been  done  to  the  prisoner,  certainly 
no  injury  which  a  new  trial  would  repair,  because  even  should 
a  Venire  tie  iioro  be  awarded,  it  is  not  pretended  that  the  pris- 
oner c(nild  insist  upon  the  excluded  person  being  sjjecially 
returned  upon  the  panel.  The  result  would  be  that  the  prisoner 
would  probably  be  tried  again  by  another  competent  jury,  of 
Avhich  the  excluded  jxn'son  would  not  be  a  mend>er,  and  so  the 
new  trial  would  oiUy  be  to  do  over  again  that  which  had  been 
doiu»  already.'' 

L'pon  this  subject  it  is  further  contended  that  the  action  of 
the  court  sliouhl  be  reviewed  because  the  ground  of  challenge 
is,  in  fact,  gemn-al  rather  than  ]>articular. 

Section  ii)Ol  declares:  ""A  challenge  for  cause  may  bo  taken 
by  either  party.  It  is  an  objection  to  a  particuhir  juror,  and 
is  either:  First,  general,  that  the  juror  is  discpialiiied  from 
serving  in  any  case;  or,  second,  particular,  that  he  is  disquali- 
lied  from  serving  in  the  case  on  trial."'  Section  1903  defines 
implied  bias  to  bo  such  a  bias  us,  Avhcn  the  existence  of  the 


■^^PJl" 


378 


AMERICAN  CRIMINAL  REPORTS. 


facts  is  nscci'tainod,  in  jiul<j;iiiont  of  law  disqualifios  flic  juror, 
and  this  is  ])i'<»i)(>i'ly  n\a(loono  of  tlie  ])arti('ulai"  causes  I'oi-  clial- 
len<^t'.  Tlio  sul)soqiiont  section,  in  itsnintli  sulxlivision,  declares 
that  if  the  olfenso  charged  be  punishable  with  death,  the  entor- 
tainin<^  of  such  conscientious  opinions  l)y  the  juror  as  would 
preclude  his  finding  the  defendant  guilty,  shall  bo  cause  for 
challenge  for  inii)lied  bias.  It  is  apparent  that  the  oltjt'ction 
to  the  juror  did  not  go  to  the  general  cause  of  challenge,  that 
he  was  distpialilied  from  serving  in  any  case,  but  to  th('  pai-tic- 
ular  cause,  that  ho  was  discpialilied  from  serving  on  tlie  raso 
on  trial. 

The  third  objection  is  taken  to  the  giving  of  an  instruction 
touching  the  nr.itters  proper  for  the  jury  to  consider  in  deter- 
minin<>'  the  credibilitv  to  be  •'•iven  to  the  testimonv  of  Taiiir 
Yan,  who  was  jointly  indicted  with  appellant. 

The  instruction  is  as  follows:  "The  defendant,  Tang  Van, 
has  olfered  herself  as  a  witness  in  behalf  of  the  defendants  in 
this  ti'ial,  and  in  considering  the  weight  and  etfcsct  to  Ik^  given 
to  her  evidence,  in  a<ldition  to  noticing  Ian'  manner  and 
the  probability  of  her  statements,  taken  in  connection  with 
the  evidence  in  the  cause,  you  should  coitsidcr  her  ivlation 
and  situation  under  which  she  gives  her  testimony,  t lie  eousf^- 
(juences  to' her  relating  from  the  result  of  this  trial,  and  all  the 
inducements  and  temi)tations  which  would  ordinarily  iiillueiicc? 
a  person  in  her  situation.  You  shouUl  carefully  determini!  tiie 
amount  of  credibility  to  which  her  evidence  is  iMititled.  Jf 
convincing  and  carrying  with  it  a  belief  in  its  truth,  act  upon 
it;  if  not,  you  have  no  right  to  reject  it." 

The  point  of  the  objection  appears  to  be  that  Avhilst  this  in- 
struction was  correct  in  so  far  as  the  testimony  of  Tang  Yan 
applied  to  herself,  it  ])laced  her  testimony  rekiting  to  appellant 
in  a  less  favorable  light  before  the  jury  than  that  of  the  otlier 
witnesses.  The  objection  is  untenable.  Whilst  it  is  customary 
for  courts  to  instruct  juries  in  reference  to  the  testinjony  of 
defendants  in  criminal  cases,  who  olfer  themselves  as  witnesses, 
the  attention  of  the  jury  may  be  directed  to  the  peculiar  cir- 
cumstances surrounding  any  witness  and  proper  to  bc^  consid- 
ered in  determining  the  weight  to  be  attached  U)  his  testimony. 
Finally,  it  is  claimed  that  the  facts  of  the  case  required  the  ap- 
plication of  a  rule  of  law  upon  which  no  instruction  was  given. 


COYLE  V.  COiniONWEALTH. 


370 


This  objection  is  answered  bv  the  fact  that  no  instruction  on 
the  subject  was  requested.  The  oniisjlon  to  instruct,  when  not 
definitely  recjuested,  is  not  tlie  subjiict  of  an  exception. 

Tlierc  beiiif^'  no  crrcjr  in  tlio  reconl,  the  order  and  judgment 
are  atfirnied,  and  the  district  court  directed  to  ai)j)oint  a  day 
for  the  execution  of  its  sentence. 


COTLE   V.   CoMMON'WKALTH. 

(104  Pa.  St.,  117.) 

MuKDEU :  Indictment  —  Pructiee  —  Ecidcncc  — E.rimvts  — Authority  of  judge. 

1.   AUTICOUITY  OP   JUIKIE   NOT   TO   BE  QLESTIONKT)    BY   I'KIVATE   PARTY.— Ill 

tilt'  I'xiTciso  of  liis  i>ublic  jiulioial  liiiictiuiis  t!io  liiwCul  authority  of  i\ 
ju(l^(>  c.iiinot  bo  (jiu'stioniMl  by  a  private  ih'1*s(>ii.  Th.-  attiiriK'y-g(?noral, 
acting  ou  behalf  of  tho  state,  can  alone  <ni(>stion,  by  a  A\n*it  of  qito  war- 
ranto, Ins  oonstitiitioniU  rij;ht  to  exert'is)?  his  jmlicial  functions. 
3.  At'T  i;>rA»usniN(i  coukt  caxndt  he  attacked  by  special  plea. —  A 
lirirtoner,  luiiler  indictment  for  murder,  cannot,  by  a  s[)ecial  \>lea  to  the 
jurisdiction  of  the  c^nirt,  impeach  the  constitutionality  of  an  act  of 
assembly  which  desiijnated  the  county  in  which  sai<l  court  was  held  as 
a  separate  JudiciiU  district,  tipon  tlu!  allej;ation  that  saifl  county  con- 
tained less  than  the  number  of  inhal)itants  reiiuired  under  article  V, 
si'(.'tion  5,  of  the  constitution,  to  entitle  it  to  Ix^  constituted  u  separate 
Judicial  district. 

3.  PUDPEU  FUNCTION  OF  EXPERTS.— Tlio  proper  function  of  v.-itncsso3  siil> 

])o:>naeil  to  f^ivo  testimony  jw '•oxpiils"  is  to  instnict  the  coiu't  and 
jury  in  matters  so  far  repioved  from  the  ordinary  pursuits  of  life,  that 
accurate  knowk'd};e  «jf  theuj  cjui  only  be  j^ainetl  by  study  luid  ex- 
perience; the  object  being  to  enable  both  court  tuid  jury  to  jutlKc  intel- 
li;;ently  of  the  force  and  api)lication  of  the  several  facts  introduced  in 
evidence. 

4.  Same  — Opinion  op,  when  evidence  not  conflicting.- In   a  proper 

case  for  expert  testiniony,  where  the  facts  ai'e  admitted,  or  provetl  by 
evidence  not  conilicting,  the  opinion  of  an  expert  upon  s^uch  facts  is  ad- 
nussil)le  as  a  scientific  deihiction. 

5.  Same  —  But  when  conflicting,  he  cannot  be  asked  opinion  drawn 

FROM  WHOLE  EVIDENCE.  —  But  where  the  evidence  is  contlictinj?,  an  ex- 
pert cannot  be  iisUed  his  opiiuon,  as  derived  from  the  whole  evidence. 
The  questions  to  him  should  state  specifically  the  particular  facts  in 
evidence,  hypothetically  assuming  them  to  be  true,  upon  which  he  is 
to  express  his  oi)inion.  He  should  be  asked,  by  indi'pendent  (piestions, 
his  opinion  as  to  facts  testified  to  on  the  one  hand,  and  his  opinion 
as  to  opposing  facts  testified  to  on  the  other  hand,  in  such  manner 
that  the  jiny  can  know  u^jou  what  particular  state  of  facts  liis  several 
opinions  were  based. 


380 


AIHERICAN  CRI5IINAL  REPORTS. 


Indictment  of  John  Coylo,  Jr.,  for  murder  in  the  first  degree 
of  Emily  Myers. 

II.  I.  Fixlicr  and  TT".  C.  Chapman,  for  plaintilT  in  error. 

S.  21.  Sicojh',  (li.strict  jittoi'iioy  for  AdiUiis  county,  and  FJ- 
van!  />.  Zliijh'i-,  district  attorney  for  Yorli  county,  for  tlio 
commonwealth,  defendant  in  error. 

]\rr.  Justice  Ci.akk  delivered  the  opinion  of  the  court  Janu- 
ary 7,  1.SS4, 

The  question  sou<^ht  to  be  raised  l)y  the  prisoner's  sjx'cial 
plea  to  the  jtnisdiction  is  not  pi'opiM-ly  before  us.  Tiu>  vi^lit- 
ful  authority  of  a  jud^^-e,  in  the  full  exercise  of  his  public  judi- 
cial functions,  cannot  be  questioned  by  any  merely  privato 
suitor;  nor  by  any  other,  exce|)ting  in  the  form  ('specially  pro- 
vided by  law.  A  judge  di' facto  assuuus  the  exercise  of  a,  j)art 
of  the  prerogative  of  sovereignty,  and  the  legality  of  that  iis- 
sumptiou  isojK'u  to  the  attack  of  the  sovereign  power  ahme.  If 
the  question  nuiy  be  raised  by  one  private  suitor  it  may  be  raised 
by  all.  and  the  administration  of  justice  would  under  such  cir- 
eumslances  prove  a  failure.  It  is  not  denied  that  Judge  ^^('- 
Lean  was  a  judge  ile  facio;  and  if  so  he  is  a  judge  tie  jnt'>'  iis 
to  all  parties  except  the  commonwealth.  The  attoi'ucy-gen- 
cral,  representing  the  sovei-eignty  of  the  state,  by  a  writ  of 
quo  warranto.,  m\\f^\i  pro[)erly  present  this  constitutional  (pies- 
tion  for  our  consideration,  but  it  cannot  conu;  bef»)i'e  us  from 
any  other  source,  oi  in  any  other  form.  This  is  not  a  Ui'w 
question;  it  came  before  this  court  \\\  Ihirrdr'i  ('(f.<<i\7  ^h\r, 
04,  and  in  the  case  of  (larl'  v.  Conuixunrcdltli,  ;)  ('iis(>y.  1■J'^. 
The  same  principle  is  distinctly  asserted  in  Camj>h>ll  r.  ('nin- 
monwcalth,  15  Norris,  344,  and  has  been  rej)eatedly  appiictl  in 
many  others.  This  point  was  not  pressed  in  the  oi-al  argunu'iit 
of  counsel,  but  as  it  was  the  subject  of  the  second  assignment 
of  error,  we  have  been  obliged  to  dispose  of  it.  As  the  pica 
to  the  jurisdiction  could  not  in  any  event  have  availed  the; 
prisoner,  even  to  raise  the  question  intended,  it  is  not  only  un- 
necessary to  discuss  the  grave  constitutiomil  question  suggested, 
but  the  first  assignment  of  error  falling  with  the  second,  we 
need  make  no  further  reference  to  cither. 

The  third  and  fourth  a'^.si^nments  of  error  are  without  mei'it. 


COYLE  V.  COJLMON  WEALTH. 


3S1 


It  was  proppr  for  tlio  crmi't,  in  tlio  cxoreiso  of  its  (liscrction, 
to  allow  the  witness,  John  C'oylc,  Sr„  to  be  ivciillcd  for  further 
cross-exiuninntion ;  the  olfor  was,  in  part  at  least,  t<)  lay  ;;round 
foi"  contra«lietion,  and  the  testimony  of  Inisweiler  was  after- 
wards properly  received  for  that  ])urpose. 

\oi'  can  wo  (ind  a)iy  merit  in  the  fifth  or  sixth  assii^nments. 
The  testimony  on  the  pai't  of  th(>  defense,  as  to  the  prisoner's 
habit  of  resorting-  to  the  woods,  and  renraining  there  in  an  ap- 
parently melanclioly  state,  was  ^'•(•neral.  not  specilic.  and  the 
commcmwealth  was  thei-c^fore  at  lil)erty,  by  the  introdiicticm  of 
siM'cilic  facts,  to  explain  the  causes  wliich,  on  some  occasions, 
led  to  this  result.  If  the  proof  on  part  of  the  prisoner  had 
been  of  specific  instances,  the  course  of  examination  insisted 
upon  by  the  jirisoner's  counsel  ini<;ht,  perhaps,  have  been  the 
])roper  one.  The  testimony  of  Philip  A.  Altland  was  stricken 
out  of  the  case  bv  the  court,  and  the  iurv  was  instructed  to 
disre<,^ard  it;  but,  if  it  liad  not  been  stricken  ont,  it  was  cer- 
tainly competent,  by  the  testimony  of  Jerry  Altland,  to  con- 
tradict John  Coyl(\  Sr.,  and  his  wife,  Avho  testified  for  the 
prisoner,  in  their  statem(>nt  that  they  were  not  present  at  the 
alleged  interview  in  the  jail. 

The  counsel  for  the  prisoner  havinf^,  in  their  opening  ad- 
dress to  the  jury,  referred  to  concussion  of  the  brain  from  the 
discharge  of  a  gun.  as  one  of  the  original  causes  of  the  mental 
disturbances  of  the  pi-isoner,  and  introcUiced  evidence  tending 
to  show  that,  from  that  time,  his  conduct  Avas  such  as  to  indi- 
cate unsoundness  of  mind,  it  was,  we  think,  proper  to  inrpiire 
of  competent  witnesses,  Avhether  tlie  cause  thus  assigned,  and 
attempted  to  be  shown,  was  sufficient  to  produce  the  alleged 
result.     The  seventh  assignment  is,  therefore,  not  sustained. 

This  bring^s  ns  to  the  substantial  and  important  question  in 
the  cause,  as  raised  by  the  eighth  and  tenth  assignments  of 
error. 

In  the  examination  of  experts  it  is  only  necessary  to  keep 
constantly  in  view  that  their  proper  office  is  to  instruct  the 
court  and  jury  in  mattci's  so  far  removed  from  the  ordinary 
pursuits  of  life  that  accnrate  knowledge  of  them  can  only  bo 
acquired  by  continued  stndy  and  experience;  the  pnrpose  is  to 
enable  both  the  court  and  jury  to  judge  intelligently  of  the 
force  and  application  of  the  facts  introduced  in  evidence,  as 


3S3 


AMERICAN  CRIMINAL  REPORTS. 


tlioy  would  litivo  been  ablo  to  do  if  tlioy  liiul  ])Qvn  j)or.sf>r.s 
j)i'o[)ei']y  iiistruc'tcd  ujxm  tlus  subjects  involved.  Kxpcrt  testi- 
mony, owin^',  pei'hiijjs,  to  the  greater  extent  of  reeent  scicntilic 
reseiircli,  is  uiucli  more  fronuently  i-esorted  to  th;>n  foi-nierly,  and 
the  rules  reyuJating  its  introduction  may  bo  considered  cstal)- 
lislied  ;  there  .seems  to  bo  no  great  conllict  of  autiiorities  on  tlie 
law  ai)])lieab]e  thereto. 

lu  cases  involving  the  question  of  insanity  a  uiedieiil  expert 
may,  of  course,  give  his  opinion,  based  upon  ))ers(>na]  examin;i- 
tion  and  knowledge  of  the  ])atient;  but  wliere  ho  is  not  pos- 
sessed of  a  personal  knowledge,  his  opinion  niit.it,  as  we  liavc 
said  in  lionch  v.  Zt'h)'ln(j,  !)  P.  F.  Smith,  74,  "be  ])rj;!:cate(l  of 
the  facts  jtroved  or  admitted,  or  of  sncii  as  ii]>|)eiir  in  evidence 
hypothetically  stated,''  and  this  must  bo*  accepted  with  some 
modification. 

Tlie  credibility  of  the  witnesses  is  in  all  cases  a  rpiestion 
for  the  jury ;  wliat  is  "  pj'oved ''  is  ior  tiieir  determination.  An 
exi)ert  cannot,  therefore,  if  the  witnesses  are  conti'ydiclory,  be 
interrogated  as  to  the  eU'ect  i)roduce(l  upon  his  mind  by  all  tiie 
evidence  in  tlie  cause;  and,  upon  similar  ground-!,  wjiei-e  tlu^ 
testimony,  although  not  contradictory,  is  inconsistent  or  otlier- 
wise  conflicting,  an  expert  is  not  allowed  to  ex])ress  an  opinion 
upon  the  effect  of  it,  oven  assuming  the  truth  of  the  whole,  as 
the  (juestion  of  the  preponderance  of  the  testimony  is  also  for 
the  jury;  where  the  truth  of  the  evidence  in  such  case  is  as- 
sumed or  admitted,  before  the  (juestion  uj)on  matters  of  science 
can  arise  the  witness  must  <letei"mino  a  (juestion  of  fact,  which 
is  not  a  nuitter  of  science,  and  it  is  impossihle  foi'  the  jury  to 
<letermineof  what  conclusion  of  fact  the  oj)inion  <jf  the  witness 
is  j)re(licated. 

AN'here  the  facts  arc  not  conflicting,  however,  and  are  cither 
admitted  or  proved,  the  o'pinion  of  an  oxjiert,  Innng  a  coiu;lii- 
sion  drawn  h'oni  facts  that  are  known,  is  admissible  as  a  scien- 
tific deduction,  according  to  the  skill,  exj:c.'ience  ami  knowledge 
of  the  witness. 

The  mode  of  examination  which  is  generally  ]MU'sued,  how- 
ever, is  to  interi'ogate  the  witness  in  hyjiothetical  form  as  to 
Avhat  state  of  mind  is  indicated  by  certain  facts  assumed,  as 
t(.'stifie(l  by  certain  of  the  witnesses,  or  by  all  of  them  where 
they  are  not  in  conflict.     Thus,  by  means  of  the  liy[)othesis,  the 


COYLE  V.  COMMONWEALTH. 


3S3 


jury  is  enabled  to  detcrinino  by  the  mere  form  of  tlio  question 
Avliat  specific  facts  are  assumed  by  the  expert  in  his  conchi- 
sioiis,  iWid  of  wluit  liis  opinions  are  predicated;  and  these 
opinions  \vill  be  regarded  by  the  jui'ors  in  their  dehheration, 
just  as  tlioy  may  iind  the  facts  assumed  in  eacli  interrogatory 
to  be  true  oi'  not.  Even  liy[)othetical  (questions,  liowover,  may 
pei'haps  be  framed  in  such  form  as,  practically,  to  call  ujion  the 
witness  (o  pass  upon  the  merits  of  the  case,  and  if  so  framed 
tliey  are  as  objectioiudde  as  if  they  directly  interrogated  the 
witness  uj)on  the  wIkjIc  case  presented.  The  examination  must, 
of  ci»;n'si;,  be  conlined  to  the  laws  and  conditions  of  the 
specialty  in  which  the  exi)ert  is  skilled,  and  the  hypc^thesis 
must  he  consistent  with  what  api)ears,  or  what  may  bo  fairly 
claimc^d  to  apj)ear,  in  the  proof;  the  interrogatories  may  be 
propouiuled  from  the  whole  of  the  evidence,  if  not  conflicting, 
or  any  part  of  it;  but  when  facts  on  one  side  are  in  conllict  with 
facts  on  the  other,  they  ought  not,  as  stated  by  Aldis,  J.,  in  the 
case  of  Juiii'ch'dd  v.  BitscoiDh,  35  Vt.,  -tOii,  to  be  incorpoi-ated 
in  oiu;  question, ''Ijut  the  attentiim  of  the  witness  should  be 
called  to  their  opjxjsing  tendencies,  and  if  his  skill  or  knowledge 
can  furnish  the  exi)lanation  which  harmonizes  them,  he  is  at 
lih;'i'ty  to  state  it." 

]\lr.  Kedlield,  in  his  treatise  on  the  Law  of  Wills,  page  IT)**, 
says:  "TIk'  most  convenient  mode  of  ]mtting  the  incjuiry,  and 
the  least  exceptionable  one,  in  our  judgment,  is  to  incpiire  what 
state  of  mind  is  indicaied  by  certain  facts  assumed  or  testitied 
bv  cei'tain  witnesses,  or  in  anv  other  hvpothetical  form  of 
bringiiig  the  .point  of  inquiry  to  the  mind  of  the  witness.  If 
the  witness  says  the  facts  assumed  indicate  mental  unsound- 
ness. h(>  may  l)e  intpiii'ed  of  in  regard  to  the  state  and  degree 
of  mental  unsoundness  thus  indicated,  and  how  far  it  will  dis- 
qualifv  the  ])erson  for  business  or  render  him  unconscious  of 
the  nature  of  his  conduct." 

At  the  trial  of  this  case,  in  the  court  below,  the  interroga- 
tories to  the  expert  witnesses  were  put  in  hypothetical  t\)nu: 
th{>y  were  so  propounded  that  the  jury  would  without  dilliculty 
discover  the  particular  facts  uium  which  the  several  opinions 
W"re  given;  w]u}ther  they  were  meagerly  stated  for  tiie  o])in- 
ion  of  the  witnesses  thereim  was  a  sui)ject  for  discussion  to 
the  jury.     Each  side  had  the  right  to  an  opinion  from  the 


384 


AMERICAN  CRIMINAL  REPORTS. 


Avitness  upon  any  hypothesis  rcasonahl}'  consistent  Avith  tlie 
evidence,  and  if  meagerly  presented  in  the  examination  on  one 
side,  it  may  be  fully  presented  on  the  other;  the  whole  exami- 
nation being'  within  the  control  of  the  court,  "whoso  duty  it  is 
to  see  that  it  is  fairly  and  reasonably  conducted. 

The  questions  Avere  perhaps  leading  in  form,  but  they  Avere 
not  objected  to  on  that  ground,  nor  Avould  this  defect  in  form 
ai)]M>ar  to  have  produced  any  misehicvous  results,  if  avc  may 
judge  of  this  from  the  results  of  the  cross-examinations. 

It  is  true,  perhaps,  that  Avhat  is  merely  indicated  by  cei'tain 
facts  may  not  be  shown  by  them.  Although  the  words  "  show "' 
and  "indicate"  are  sometimes  interchangeable  in  popular  use, 
they  are  not  always  so.  The  present  ordinary  use  of  the  Avords 
discloses  a  dilTerenco  in  signification,  and  that  dilference  is  per- 
haps more  recognizable  Avhcn  these  terms  are  applied  to  the 
law  or  to  medical  science.  "To  show"  is  to  make  apparent 
or  clear  by  evidence,  to  prove;  Avhilst  an  "indication  "  may  be 
merely  a  symptom,  that  Avhich  ]H»ints  to  or  gives  direction  to 
the  mind.  The  commonwealth,  however,  had  a  riglit,  we 
think,  to  inquire  in  projier  form,  of  a  competent  exj)ei't.  Aviiether 
any  condition  of  facts  assumed,  either  proved  or  indicated  in- 
sanity; whether  such  facts  Avere  conclusive,  or  mere  sympto- 
matic, or  neither.  Although  tlie  commonwealtli's  counsel  in 
the  several  examinations  used  the  Avord  show,  the  distinction 
Avas  in  each  instance  fully  brought  out  in  the  cross-exauiinalion. 

The  ninth  assignment  of  ei'i'or  is  to  the  admission  of  a  ])or- 
tion  of  tlie  evidence  of  Dr.  .1.  W.  (\  O'Xeal.  It  would  iqipear 
that  the  jirisoner  had  for  a,  number  of  years  practical  the 
secret  vice  of  self-abuse,  and  on  Monday  ])revious  to  the  lionii- 
cide  had  applied  to  Dr.  JI.  K.  Noi'ris  for  treatment,  in  an 
atlliction  resulting  from  that  A'ice,  Avhich  Doctor  Xorris  Ici-med 
"the  loss  <;f  manhood."  Dr.  Xorris,  who  Avas  ca]l(Ml  by  tlie 
prisoner  in  his  examination  and  cross-examination.  i)articularly 
descril)ed  the  conduct,  manner  and  appearance  of  the  prisoner 
at  th(>  time  he  a])plied  for  treatment.  In  response  to  a  variety 
of  questions, he  says: 

"  Of  course  I  could  not  see  into  his  mind,  into  the  intrica- 
cies, but  Avhat  I  saw  of  him  that  ]Sronday  morning,  Aviien  his 
condition  was  called  to  my  attention,  he  had  the  ap[)earaucc  of 
an  abject  man,  almost  on  tho  A'crgo  of  despair." 


COYLE  V.  COMMONWEALTH. 


385 


Q.  "When  was  that?"' 

A.  "On  Monday  previous  to  the  commission  of  this  act;  and 
I  there — well,  I  took  particular  notice,  and  contrasted  his 
appearance  then,  to  all  other  times, —  and  I  had  met  him  occa- 
sionally, as  he  had  been,  to  the  best  of  my  knowledge,  under 
drink,  lie  generalh'  met  me,  '  How  are  you,  doctor?'  'xVbout 
as  middling, '  and  '  (live  me  ten  —  I  want  to  get  a  drink? '  He 
seemed  sad,  and  with  his  head  down,  but  at  the  other  times  he 
seemed  to  be  in  better  spirits." 

Q.  "  Do  I  understand  that  to  bo  John  Coyle's  condition  ou 
the  ]\ronday  morning  i)revious  to  the  act?" 

A.  "  lie  presented  then  to  be  a  man  —  an  abject,  des])airing 
man." 

Q.  "  Abject  aiid  despairing,  with  his  head  bowed,  and  what 
else?" 

.1.  "Soliciting  help  from  me,  and  if  not  helped  would  kill 
himself." 

Q.  (l>y  Mr.  Swope.)  "When  patients  come  to  consult  with 
you  ^  that  is,  remembering  the  ])atient  that  yftu  spoke  of  —  on 
occasions  as  delicate  as  that,  is  it  not  a  suf>ject  approached 
with  a  great  deal  of  reluctance  and  regret?" 

.1.  "Generally  so." 

Q.  "  Is  it  not  the  custom  of  every  man,  always,  to  approach 
tliat  subject  with  sorrow  and  rei^ret?" 

.1.  "Sometimes;  it  is  not  universal,  it  is  not  general,  I 
ciinnot  say  that  there  are  mt  exceptions  to  that  general  rule; 
there  may  be  some.  I  have  had  sometimes,  but  they  do  not 
present  this  invariably,  sir, —  I  cannot  say  that." 

Dr.  O'Xeal  was  called  as  an  expert  on  the  })art  of  the  com- 
mon wealtli,  and  was  incpiired  of  in  rebuttal  as  follows: 

Q.  "  Stat(i  whether  or  not  in  your  practice  you  are  consulted 
by  persons  for  the  loss  of  manhood,  and  cm  account  of  the 
secret  habit, —  this  ])rivate  vice,— if  so,  ])lease  indicate  how 
frequently  as  nearly  as  you  can — and  tell  the  jury,  if  you 
jilease,  the  way  patients  approach  physicians  when  they  speak 
iiljout  a  complaint  of  such  a  character  as  that." 

The  i)ur|)ose  of  this  offer,  as  stated,  was  to  explain  the  ap- 
pearance of  the  defendant  as  test i lied  to  by  Dr.  Xorris. 

A.  "I  am  consulted  often,  and  I  think  I  may  say  through 
the  whole  period  of  m}'  service,  in  the  practice  of  medicine, 
Vol.  IV  — 25 


mm. 


3SG 


AMERICAN  CRIMINAL  REPORTS. 


that  is,  the  first  part  of  it,  they  '  come  cliaractovistically.' 
AVJion  I  say 'come  characteristically,' I  lucan  a])i)r<>ach  the 
subject  ^vith  a  good  deal  of  regret  —  seem  troiililed  —  their 
countenimco  indicates;  largely  their  situatitm  —  they  are  back- 
Avard,  they  approach  the  subject  by  degrees, —  tlu^y  have  ex- 
])ressiou  of  unhappiness,  based  upon  the  fact  of  their  having 
lost  their  manhood." 

AVe  cannot  agree  with  the  learned  counsel  for  the  prisoner 
that  tlie  admission  of  this  testimony  was  error.  If  tin?  vice 
of  self-abuse  has  such  a  peculiarly  depressing  effect  upon  the 
mind,  which  becomes  apparent  and  obvious  to  the  eye  of  tlic 
expert;  if,  in  general,  the  conduct  and  behavior  of  perscms  set 
aillicted.  influenced  by  their  nu'utal  coiulition,  is  ''ciiaractcr- 
istic"  and  peculiar,  it  is  certainly  proper  for  the  ex])ert,  wlii> 
has  the  skill  from  ex])erieuce  to  detect  it,  to  descrii)e  its  ex- 
ternal manifestations  in  the  conduct  and  behavior  of  tlic 
patient.  The  testimony  of  Dr.  O'Xeal  had  a  tendency  to  ex- 
plain wliy,  at  this  ]iarticular  time,  the  prisoner  presented 
ai)pearance  of  '»an  ahjinrt  and  despairing  man.'' 

We  have  examtned  with  great  care  the  whole  record  in  tliis 
case,  liled  with  tiut  writ,  and  we  are  unable  to  lind  ai\y  error 
upt>n  which  we  feel  justilied  in  reversing  the:  judguu'iit  of  the 
court  below.  The.  jury  liave  found,  after  a  fair,  d(*lil»erate  and 
patient  trial,  thattlie  i)risoner  was  possessed  of  a.  full  knowledge 
of  the  criminal  nature  of  his  act,  at  the  time  of  its  commission, 
and  we  cannot  (listurl>  their  finding.  It  is  <uir  i)ainl'ul  duty, 
therefore,  to  allirm  the  judgment. 

Judgment  afiirmed,  and  it  is  oi'dei-ed  that  the  record  l)e  re- 
mitted to  the  court  of  over  and  terminer  of  Adams  count v 
for  the  purpose  of  execution. 


Graves  v.  State. 

(45  N.  J.,  203.) 

Mi'KDER:  Indictment  —  InmiiH;/. 

1.  iNDicTsrENT—McuDKB  — Statutory  form  — Dr.LinEnATKi.Y,  etc.— An 
incUettuent  charging  murder  in  the  l.inguiige  of  tiie  forty-liftli  sectifni 
of  the  cruuinal  procedui-e  act  is  constitutional  and  logal,  aud  sufU- 


GRAVES  V.  STATE. 


387 


cicntly  sots  forth  the  nature  and  canse  of  the  accusation  without  tht> 
use  of  the  words  with  "deliberation  and  premeditation." 
2.  Insanity  — When  inteupi)SED  as  a  defense.— The  defense  of  insanity- 
must  be  ei-tahhshed  liy  a  ja-ejuinderinu'e  of  proof;  and,  in  such  case,  the 
Imrtheu  is  not  on  the  slate  to  satisfy  the  jurj'  of  the  sanity  of  tlio  pris- 
oner bi-yond  a  reasonable  doubt. 

Sioinid  Kdlisch,  for  the  plaiiititf  in  error, 
F.   \V.  Stei'cn-i  and  (hear  Keen,  for  the  state. 

The  opinion  of  the  court  was  delivered  by 

P.i.Asi.Kv.  CnncF  .IrsricK.     The  first  objection  taken  to  the 
proceedings  in  tl'.is  case  is,  that  tlie  indictment  (k)es  not  legally 
charge  the  crime  of  murder  in  tlie  first  degree.     The  pleading 
tints  challenged  is  in  exact  conrornuty  Avitli  the  requirements 
ol'  the  iVc.'ly-lil'th  section  of  the  act  regulaiing  proceedings  in 
criminal  cases  (Ilev.,  p.  2T.V),  with  the  exception  that  it  intei'- 
polates  the  adverl.)  "delii)i'rately  "  in  its  description  of  the  of- 
fense.     It  follows   the  statutory   language    in   the  essential 
particuhu's  of  charging  ''that  the  deftMidant  did  AvilfuUy,  felo- 
niously and  of  his  malice  aforethought  kill  ami  murder  the 
deceased;"  so  that  if  there  be  any  illegality  in  the  mode  of 
charging  the  crime,  as  a  matter  of  pleading,  the  fault  is  not  in 
this  formula,  but  in  the  statute  itself.     And,  in  ])oint  of  fact, 
it  is  this  act  which  the  arguuuMit  addressed  to  the  court  puts 
to  the  test,  the  first  exception  to  it  being  that  it  is  repugnant 
to  section  S  of  article  I  of  the  constitution  of  this  stat(\     The 
provision  thus  invoked  contains  the  declaration  that  in  "all 
criiuiri^d   pi'osecutions  the  accused  shall  be  infornuMl  of  the 
nature  ami  caus(>  of  the  accusation."     It  is  also  ai'gued  that 
section  \)  of  the  same  article  rellects  a  light  on  the  nature  of 
the  jirivilege  thus  guarantied,  in  the  regulation  that  "•  no  ])er- 
son  shall  be  held  to  answer  for  a  criminal  offense  unless  on  the 
presentment  or  indictment  of  a  grand  jury,''  except  in  certain 
enuuu'rated  cases  which  (U)  not  touch  the  present  nuitter  of 
intpiii'V. 

The  ingenious  and  elaborate  reasoning  on  which  the  jiosi- 
tion  here  taken  is  sought  to  be  held  can  be  thus  summai'ized: 
That  the  statute  of  this  state  which  defiiu's  the  crime  of  mur- 
der has  altered  the  comnum  law  t-y  adding  to  the  constituents 
of  the  crime  in  its  higher  form  those  of  ''deliberation  and  pre- 


m 


388 


AMERICAN  CRIMINAL  REPORTS. 


inoditatioii."  and  tliat  as  a  cotisoqucnce  the  offense  of  that 
rank  must  be  laid  in  the  indictment  witli  a  special  averment  of 
the  presence  of  such  characteristics;  and  tliat,  by  the  same 
statute,  tlie  offense  is  divided  and  made  two  substantive  and 
distinct  felonies, —  the  one  punishable  with  death,  the  other 
with  imprisonment  for  a  definite  period;  and  that,  there^or(^ 
an  indictment  which  charges  in  a  general  form  the  perpetra- 
tion of  a  murder,  without  indicating  which  of  these  two 
separate  crimes  is  meant,  does  not  fulfil  the  constitutional  i-o- 
quirement  of  informing  the  defendant  of  the  "  nature  and  cause 
of  the  accusation," 

If  the  l>asis  of  this  reasoning  be  sound,  it  is  apparent  tliat 
the  result  is  that  there  has  never  been  in  this  state,  since  tlu^ 
enactment  of  this  ancient  law  defining  the  crime  of  murder, 
and  the  adoption  of  the  constitution  of  1844,  a  legal  iiulict- 
ment  or  a  legal  conviction  with  respect  to  this  offense. 

There  have  been  no  indictments  drawn,  treating  the  pro- 
vision assigning  degrees  to  the  crime  of  mui'der  as  having  tlio 
effect  wliicli  is  now  claimed.  Such  a  course  Avould  be  incon- 
sistent with  the  statute  itself,  for  it  is  drawn  with  the  evident 
purpose  that  the  charge  should  be  in  the  general  form,  as  at 
common  law.  of  an  accusation  of  murder,  indicating  the  crime 
in  its  most  heinous  degi'<>e.  This  is  clearly  a))parent  from  tiie 
statutory  dii'cction  contained  in  the  .section  delining  tin;  crime, 
"that  the  jury  before  whom  any  person  indletcd  for  iiiiir<l<i' 
shall  be  tri(Ml  shall,  if  they  find  such  persoii  gnilty  thereof, 
designate  l»y  their  V(M'dict  whetlKU'  it  be  murder  of  the  first  oi' 
second  degree."  Tliis  duty  assigned  to  the  jury  nectessit.'ites 
the  crime  to  be  laid  in  a  form  that  embraces  it  in  both  its  de 
grees.  The  effect  of  the  statute  in  (piestion,  according  to  tli<' 
entirely--;ettled  construction.  Avas  neither  to  ad<l  any  case  to 
noi'  take  any  case  from  the  class  of  crimes  wliich  at  common 
law  was  denominated  murder,  for  every  act  that  was  murdci- 
at  common  law  is  still  mui'der  in  this  state.  AVhat  this  statute 
effected  was  to  distribute  the  offense  into  two  classes  foi*  tlie 
sake  of  adjusting  the  punishment.  Those  facts  that  consti- 
tuted murder  in  the  second  degree  were  all  necessary  parts 
and  constituents  of  murder  in  the  first  degree,  and  the  con- 
viction of  the  lesser  crime  under  the  char'''e  of  the  hiiilier 
crime  wliich  embraced  it.  was,  upon  well-kuo' 


!• 


M' 


GRAVES  V.  STATE. 


3S0 


entirely  normal.  The  practice  is  consistent  with  scientific 
rules,  and,  at  all  events,  has  been  too  long  established  by  usage 
and  judicial  recognitions  to  bo  now  open  to  inipeacliment,  and 
it  is  manifest  tliat  tliis  interpretation  of  the  statute  tak(!S 
away  from  the  objection  to  the  late  act,  which  simplifies  the 
formula  of  the  cliarge  of  murder,  on  the  ground  of  its  alleged 
unconstitutionality,  every  semblance  of  plausibility,  for  the  ab- 
breviated statement  which  is  authorized  plainly  informs  the 
defendant  of  the  nature  and  cause  of  the  accusation.  It  does 
not  interfere  with  the  substance  and  ])ith  of  the  pleading. 
What  it  effects  is  to  sti'ip  it  of  its  teclinical  jargon  and  un- 
meaning circinnstances.  When,  in  its  succinct  accusation,  it 
avers  that  the  (l(>fendant ''did  wilfully,  feloniously  and  of  his 
malice  aforethought  kill  and  mm*der  the  deceased,"  its  plain 
iiicaiiing  is  that  the  charge  is  of  murder  in  the  first  degree,  as 
tliiit  crime  is  defined  by  the  laws  of  this  state,  and  has  the 
same  effect  as  the  old  and  verbose  form  of  ]ileading  in  com- 
mon use  in  this  respect  had  possessed.  The  intention  of  the 
legislature  is  plain,  to  substitute  a  simi)le  ])lea(ling  for  a  cum- 
brous aiul  useless  one,  and  such  an  amelioration  of  the  law  is, 
fortuniitely,  not  iiic<)mi)atible  with  the  constitution. 

The  objection  cannot  i)revail. 

The  remainiii"'  <>i'ound  of  allewd  error  resides  in  the  refusal 
of  the  court,  at  the  trial,  to  charge,  at  the  instance  of  the 
counsel  of  the  defenchii.t,  the  following  proposition,  that  is  to 
siiy : 

"  That  if  the  jury  have  any  reasonable  doubt  as  to  whether 
the  prisoner  was  sane  or  insane  at  the  time  he  committed  the 
;i('t,  the  doubt  should  be  resolved  in  favor  of  the  prisoner's  in- 
simity."  The  bill  of  exceptions  states  "  that  this  pro[)osition 
llie  court  refused  to  charge  otherwise  than  as  had  been 
charged,"  ami  thereu[)on  an  exce[)tion  was  taken. 

Fi'om  this  statcMiu'iit  it  will  be  noted  that  the  exception 
taken  has  no  connection  with  the  charge  actually  made  to  the 
jury,  except  in  the  respect  that  a  ]'eference  to  it  is  necessary 
to  ascertain  whether  or  not  it  contained,  in  substance,  the 
legal  rule  as  ))roi)ounded  by  the  defense.  That  it  did  not  con- 
tain such  rule  is  evident,  and  hence  the  only  cpiestion  now 
before  the  court  for  solution  is,  not  whether  what  the  court 
said  upon  this  subject  to  the  jury  was  legally  correct,  but 


390 


AMERICAN  CRIMINAL  REPORTS. 


Avhetlier  the  refusal  to  instruct  tlie  jury  us  rei^uosted  was  loyal. 
Ts  it  tlie  law  of  this  state  that  when,  in  a  criminal  case,  the 
defense  of  insanity  is  inter[)()se(l,  if  the  jury  have  a  reasonable 
doubt  on  the  subject,  after  looking  tlirou«ifh  the  proofs,  that 
sucli  defense  shall  prevail?  Every  one  versed  in  the  practice 
of  the  criminal  law  is  aware  that  the  proposition  claimed  to 
be  law  l)y  the  counsel  of  the  pi'isoner  in  this  case  is  one,  so 
fai'  as  authority  is  concerned,  of  the  most  doubtful  of  lenal 
})roblems.  The  judicial  mind  has  been  so  i)er[)lexed  with  the 
subject  that  it  is  ditHcult  to  say  whethei'  on  the  allirmative  or 
the  negative  side  of  the  (piestion  thei'c  is  a  i)rep()nderaiice  of 
o|tini()n.  The  elaborate  aiid  well-considered  briefs  of  thi;  re- 
sju'ctive  counsel  in  this  case  are  replete  with  antagonistic  de- 
cisions on  this  })oint,  many  of  which  are  ably  ivasoned.  iiyd 
are,  fiom  every  consick'ration,  entitled  to  the  highest  icsjiect. 
r>ut  ahhough  the  law  on  this  head  is  thus  shown  to  l)e  else- 
where in  this  coiKJition  of  uncertainty,  it  does  not  seem  to  me 
that  it  can  convtly  be  said  to  be  in  such  a  condition  in  tliis 
state.  It  is  safe  to  say  that  for  over  half  a  century  this  prop- 
osition now  claimed  to  be  law  has  been  i-ejected  in  our  ])ra('- 
tice.  Our  reports  show  that  such  re])udiation  occurred  in 
Sjhiir, r\s  ('iis)\  which  is  a  case  of  mark  in  the  criminal  aininls 
of  the  state,  and  which  took  place  in  tli(>  year  1S|;5.  1  /al).. 
3'.)<i.  And.  indeed,  as  far  as  <*.\|)erience  or  tradition  extends,  it 
has  been  the  invariable  course  to  insti'uct  the  jury  that  the  law. 
y>/v'///(/ /'r/f//.  presumes  mental  sanity,  and  that  when,  in  llir 
given  case,  the  prismier  would  overcome  such  presumption,  h" 
must  exhibit  a  cleai'  pi'(>pondei'ance  of  ]»roof  in  favoi- of  such 
<lefense.  After  such  an  i)ivcterateand  miivei-sal  acceptance  of  a 
rule  of  pi'actical  impoi'tanee  and  fre(pient  application,  it  must 
be  considered  that  tiie  tinu.'  has  ])assed  for  testing  its  coireei 
ness  l)y  the  criterion  of  sj)eculation.  If  such  a  I'ule  of  evi- 
dence, aftei"  so  consjiicuous  and  ])i'otracted  an  existence,  is  (o 
be  pushed  aside,  or  even  is  to  be  considci'ed  as  liable  to  chal- 
lenge on  theoretic  grounds,  it  is  diHicult  to  divine  ujion  what 
stable  l)asis  the  administration  of  the  law  is  to  be  conducted. 
Very  many  of  the  legal  i-eguiations  whicli  belong  to  the  tiial 
of  causes,  both  criminal  and  civil,  are  the  creatures  of  custom 
ami  usage,  and  if  such  regulations,  after  liaving  been  unipies- 
tioned  and  enforced  for  half  a  century,  are  to  be  deemed. 


GRAVES  V.  STATE, 


391 


with  respect  to  their  lo<^ality,  subject  to  assault,  the  utmost 
uncertainty  and  confusion  wouhl  be  introduced.     The  course 
taken  by  the  jud^e  on  tlie  trial  in  this  case  was  in  accordance 
witli  tlie  setth'd  law  of  this  state. 
Let  the  judgment  be  allirmed. 

Note. —  ^fll)•lIp^•  at  rommnn  lav:  and  under  the  sfiitutc. —  Sir  Edward  Coki-'s 
(k'linition  of  inurdt;r  is:  "  VVhoii  ii  iK'rspn  of  sound  memory  and  discretion 
unlawfully  killeth  any  rea.sonalile  creatui-c  in  beinj;,  and  luider  the  king's 
licace,  with  malice  aforethought,  either  express  or  ini])lied."  A  purpose  or 
design  to  kill  was  not  an  essential  iufj^edient  in  nmrder,  at  eonunon  law. 
Tlie  statutes  of  many  of  the  states  have  materially  altered  the  common  law 
(li'tinition  of  nuuxler,  and  have  classified  the  crime  into  decrees.  A^ain,  in 
many  of  the  states  classifying  the  crime  into  degrees,  the}'  have  closely  fol- 
lowed the  common  law  (lescrij)tion,  so  that  in  those  latter  states  the  form 
of  th<' indictment  for  miirder  at  common  law  would  seem  to  be  sufHcient. 
/  As  the  above  decision,  therefore,  seems  to  be  based  upon  the  i)rovisions  of 
tile  statute  of  that  stale,  to  make  the  case  of  any  particular  value  to  tlie  jiro- 
IVssiou,  it  is  deemed  necessary  to  (piote  them.  They  are  as  follows:  '"AH 
murder  which  shall  be  ]ierpetrated  by  means  of  ]ioison,  or  by  lying  in  wait, 
or  any  other  kind  of  wilful,  delibenite  and  premeditated  killing,"  etc.,  "  shall 
lie  deemed  murder  of  the  iirst  degree." 

"In  any  indictment  for  murder  >r  manslaughter  it  shall  not  bo  necessary 
to  set  forth  llie  manner  in  which,  or  the  means  by  which,  the  death  of  the 
deceased  was  caused,  but  it  shall  be  sullicient  in  every  indictmeut  i'or  murder 
to  charge  that  tlu!  defendant  diil  wilfully,  feloniously,  and  of  his  malice 
aforethought,  kill  and  murder  the  deceased,"  etc.  Under  these  iirovisions, 
the  words  used  as  descriptive  of  the  offense  and  those  which  may  be  em- 
ployed in  the  indictment  are  essentially  different.  The  lej'islature,  proljably, 
had  the  power  to  jilace  the  form  above  the  substance,  and  thus  dispense  with 
the  use  of  the  words  "(lelii)erate  and  premeditated"  in  the  indictment,  but 
without  legislation  dispensing  with  their  use  in  the  indictment,  it  would 
Neem  that  a  common  law  form  would  not  be  good  for  murder  in  the  tii'st 
d^gree,  in  lliose  stales  that  liave  departed  fnmi  the  common  law  delinition 
and  have  classitii'il  the  crime  into  degrees. 

In  Iowa  the  statute  di-lining  the  crime  of  murder  in  the  first  degive  is 
substantially  tlu^  same  as  the  New  Jersey  statute,  and  the  supnMiie  I'ourt  of 
that  state,  in  Tin' State  r.  Jitii/le,  28  Iowa,  022,  held  that  an  indictment  whidi 
charged  that  the  killing  was  "Avilful,  felonious,  premeditated  and  with 
malice  aforethought"  was  bad  as  an  indictment  for  murder  in  the  lir&t 
degiee,  because  the  word  "deliberate,"  which  entered  into  the  definition  of 
the  crime,  was  oniitted.  Beck,  J.,  in  analyzing  and  defining  the  words  of 
the  statute,  says:  "The  first  of  these  words  used,  describing  the  crime, 
•wilful,"  i!ii|)lies  that  the  act  was  (^//^'f/ by  the  perpetrator  of  jmrjiose,  with 
the  intiiit  that  the  life  of  the  party  killed  should  be  destroyed.  By  the  use 
of  the  word  •deliberate,'  in  describing  the  crime,  the  Idea  is  conveyed  that 
the  perpetrator  weighs  the  motives  for  the  act  and  its  conseiiuences,  the 
nature  of  the  crime,  or  other  things  connected  with  his  intentions,  with  a 
view  to  a  decision  thereon ;  thtit  ho  carefully  considers  all  these,  and  that 


392 


AMERICAN  CRIMINAL  REPORTS. 


the  act  is  ii  >t  -uddenlj'  coniiuitted.  It  implies  that  the  jwrpetrator  niiLst  be 
capable  (if  iIm'  exorcise  of  such  mental  powers  as  are  called  into  use  by  de- 
liberation and  the  consideration  and  weij^hiufj;  of  motives  and  consequences. 
However,  if  the  mind  be  not  in  a  condition  to  deliberate,  from  intoxication 
or  frt)m  any  other  cause,  the  offense  wt)uld  be  murder  in  the  second  degree. 
The  word  ' itveinrditatcd'  implies  that  the  act  is  done  in  pursuance  of  :i 
l)rior  intention  —  a  premeditation.  We  observe  that  these  three  words  con- 
vey distinct  and  indejiendent  itleas,  and  that  neither  of  the  others  ciui  convey 
the  meaning  and  force  of  the  word  '  «leliberate,'  omitted  in  the  indictnieiit." 

An  indictment  which  charKeil  that  the  assaidt  was  wilful,  deliberate  and 
premeditated,  and  that  the  blow  causinfij  death  was  dealt,  wilfully,  delilicr- 
atelj-  and  iiremedilatedly,  but  which  <lid  not  cl\arf;t.'  that  it  was  thus  dealt  for 
the  piu'pose  or  with  the  intent  to  kill,  or  that  the  killing  was  wilfjil,  deliber- 
ate and  ])remeditated,  was  held  bad  as  an  indictment  for  nuuvler  in  the  first 
degree.  The  intent  to  kill  nuist  Ix;  alleged,  or  words  from  which  the  law  in- 
fers this  intent.  The  State  v.  McConnich;  37  Iowa,  402;  FuuIh  v.  TlicStutt . 
8  Ohio  St.,  98;  Kain  v.  The  State,  8  id..  ;$0«. 

And  when  the  2>itrpi)sc  to  kill  is  not  averred  in  the  stating  part  of  the  indict- 
ment, the  defect  is  not  cureil  by  the  formal  concluding  jiart  in  which  it  is 
averred,  "  aHci  .so  the  jiirorti  .  .  .  do  aiiij  that  'the  ucetixi'd,''  in  the 
^manner  mid  1)1/  the  iiiraiis  (ifoirmid,  .  .  .  jtuvpoHclji,  ottd  of  delibwiite 
and  premeditated  maliec,  did  kill  and  murder"  tlie  drcetised;  such  aver- 
ment being  a  conclusion  of  law,  and  not  a  statement  of  facts.  Kaiit  r. 
The  State,  .•mprn. 

Naming  the  offense  nmrder  in  the  lirst  degiet'  in  the  introductory  and  con- 
cluding itortions  of  the  indictment  is  not  sutlicient.  unlt^ss  tlie  facts  charged 
constitute  it  such.  The  State  r.  MeCormiek,  mipra.  And  see  generally, 
flaf/aii  V.  The  State,  10  Ohio  St..  45!);  Bower  v.  The  State,  5  Jlo.,  'oM;  State 
r.  Joues,  20  Mo.,  ".8;  St<ite  r.  Feaster,  25  M>..  '.Vir,;  State  r.  Jlieks.  27  Mo., 
.■)88;  State  v.  Starr,  88  Mo.,  270;  Com.  v.  Jones,  I  J.eigh,  010;  JJoornett  r. 
Com.,  8  lA'igii,  74.");  Com.  v.  Green,  1  Ashme.ad  (Pa.),  280;  Com.  v.  Murri/, 
2  -\shme.ad  (Pa.),  41;  Com.  r.  Drum,  28  Pa.  St..  »;  Kelli/  r.  Com.,  1  Grant. 
4ai;  Com.  v.  Kimj,  2  Va.  ('as.,  78;  Mitehell  v.  State,  .")  Yerger  (Temi.), 
!?40;  Davis  v.  State,  2  Humph.  (Tenn.),  430;  Swan  v.  State,  4  Humpli. 
(Tenn.),  VMi;  Chirk  r.  State,  8  Humi)h.  (Tenu.),  071 ;  lieleif  v.  State,  9Huuii)h. 
(T(mn.),  040;  I'eojtle  v.  Potter,  5  Mich.,  1. 


The  Statk  v.  Adams. 


Murder:  Infants- 


(70  Mo.,  355.) 

■  De(*h  pcnaltji  —  Threats  uncommunicated — Threats, 
conditional. 


1.  Infants  under  eighteen  years. —  The  Revised  Statutes  of  Missouri, 
which  exempts  infants  under  eighteen  years,  who  commit  crime,  from 
imprisonment  in  the  penitentiary,  does  not  exempt  them  from  the  deatii 
penalty. 


THE  STATE  v.  ADAMS. 


393 


tlx- 


Jon 


2.  Conditional  threats  made  by  the  prisoner  aiUninsiWe. 

3.  Between  the  ages  of  seven  and  fourteen  yeai's,  the  law  presumes  au  in- 

fant incapable  of  committing  crime,  and  the  onus  is  on  the  state  .-o 
o\  crcome  this  presumption,  which  the  law  8up[)lies,  by  satisfactory  e^  i- 
dence. 

Error  to  ^for^an  Circuit  Court.    Hon.  E.  L.  Echvards,  Judge. 

James  A.  iSjmrlock  and  ^1.  W.  Anthony,  for  plaintilT  in  error. 
J).  If.  Mclntijre,  attorney -general,  for  the  state. 

Siii;kwood,  J.  The  defendant,  a  negro  boy,  twelve  years 
old  tit  the  time  of  the  trial,  October  21,  1882,  was  indicted  for 
imu'dcr  in  the  lirst  degree,  having  killed  Henry  Oslerniann, 
:il)()ut  seventeen  years  old,  by  stabbing  him  with  a  pocket 
knife,  August  1st  of  that  year. 

Walton  ^McXair,  a  small  boy,  twelve  years  of  age,  was  the 
only  witness  who  saw  the  stal)bing,  and  testilied  that  he  saw  it 
(K'c'ur  on  the  hay  lield  as  follows:  Henry  and  Tom  were  fuss- 
iiiH'.  Tom  called  Henry  a  liar.  Henry  said  if  Tom  called 
him  a  liar  again  he  wouhl  knock  him  down  with  the  jntchfoi'k. 
Tom  called  Henry  a  liar  again,  and  then  Henry  jumi)ed  out  of 
the  wagon  and  took  Tom  hy  the  arm  and  struck  him  over  the 
head  with  the  handle  of  his  pitchfork.  He  hud  Tom  by  the 
anil,  and  Tom  had  one  hand  in  his  pocket  and  pulled  out  the 
kiiil'e,  open,  and  reached  up  and  stabbed  Henry.  After  Henry 
was  stabbed,  Tom  g(jt  loose  and  started  to  run;  then  Henry 
picked  up  a  rock  and  knocked  him  down  and  then  went  and 
Ix'at  him  witli  a  pitchfork.  Lev.  Smith  halloocil  to  him  to 
quit.  Then  Henry  (piit  and  came  back  and  said  he  v/as  cut  in 
two,  and  went  and  laid  down  and  died  in  a  few  minutes.  The 
evidence  shows  that  he  was  stabbed  in  the  heart  with  the  pen- 
knife of  Airs.  Silvey,  his  mistress,  the  blade  being  about  two 
inches  and  one-half  long,  and  slender;  also,  that  when  Henry 
lay  down,  sick  from  the  wound,  Tom  got  water  and  poured  it 
on  his  head,  trviu":  to  revive  him.  But  when  he  died  Tom 
started  off  and  was  traveling  the  main  road  to  Tipton,  when  he 
was  arrested  about  a  mile  cfF,  and  brought  back.  After  he 
was  arrested  ho  confessed  the  stabbing,  but  said  he  did  it  be- 
cause Henry  struck  him  with  his  ])itchfork. 

The  state  proved  by  Frank  AVilliains,  a  small  boy,  that  he 
heard  Tom  say  if  Henry  did  not  quit  fooling  with  him  he 


39-t 


AMERICAN  CRIMINAL  REPORTS. 


would  cut  him  witli  liis  knife,  and  lie  told  Ileiii'v  of  it,  and 
told  hini  to  (juit  fooling'  with  him.  Also  "NVm.  ('.  Silvcy  hoard 
them  fussing-  one  m(nnin;j:  at  his  barn,  and  told  them  to  (|iiit 
and  not  I'epeat  it  in  the  I'litui-e.  This  was  two  months  oi*  nidie 
1)i'f(»i'e  the  sliihhin^',  and  tlu!  evidence  of  it  and  the  conditional 
thi'cat  were  ohj(>cted  to  by  (h'femhmt's  counsel. 

The  jury,  under  the  instructions  of  the  court,  fouiul  defend- 
ant guilty  of  murder  in  the  iirst  degree  and  he  was  sentenced 
accord  inii'lv. 

I.  T/k'  <Sf<it>-  V.  Jho'foti,  71  ^[c,  288,  has  settled  thiit  defend- 
ant issubjei't  to  the  death  ])enalty  iu)twithstan<ling  he  is  under 
tlieage  of  sixteen  years.  The  statute  is  the  same  tlirn  as  now. 
except  the  age  now  is  eighteen,  histead  of,  as  formerly,  sixteen 
years.     U.  S.  ls7l>.  >J  \Wa\. 

IF.  Tnder  the  ruling  in  JoIm-sotiH  C(is<',  <nif(',  ]).  I'il,  coii- 
ditioiial  tiii'eats  made  l)y  defendant  were  admissible.  Nor  Avas 
tlie  com[)eteucy  (^f  the  threats  alfeeted  by  their  nearness  or 
rem(»teiu'ss.  Kinnr  o.  St(it<\  IS  (la.,  11>1;  Shftd  v.  Furd^  '<\ 
Strobh.  (S.  C),  r.lT;  Stnte  v.  Jlof/f,  4(5  Conn.,  ;];5<». 

III.  W(i  incline  to  the  opinion  that  the  instructions  should 
have  permitted  the  jury  to  have  I'oiiml  the  defemlaiit  giulty  of 
a  less  grade;  ')f  homiiide  than  mui'der  in  the  iii'sl  degree,  pro- 
vided t\u)  circumstaiu-es.  to  be  ])i'eseMlly  noticed,  were  sucli  as 
would  admit  of  his  being  found  guilty  of  any  oll'ense.  I!iit 
notwithstanding  that  we  say  this,  we  do  not  say  l»ul  that  there 
Avere  incidents  in  the  evidence  which,  if  defendant  is  to  he 
treated  as  an  adult,  would  justify  an  insti'uction  foi'  niuvder  in 
the  Iirst  degree,  in  addition  to  those  for  a  lower  grade  ol 
homicide. 

IV.  And  we  thiidc  that  the  instructions  as  to  self-defense 
were  very  properly  given. 

y.  Ihit  we  ai'e  very  clearly  of  ojiinion  that  the  coiu't  eri-ed 
in  its  view  of  the  law  touching  tlu^  age  <d"  defendant.  We 
refer  to  the  third  and  seventh  insti'uctions  given  at  the  instance 
of  the  state.  Thos(!  instructions  virtually  told  the  jiu'v  that 
defendant's  age  should  not  all'ect  the  coiu-lusion  at  which  lliey 
should  arrive,  anymore  than  if  lie  had  been  of  mature;  years. 
This  is  not  the  law.  IVtween  the  ages  of  seven  and  of  fourteen 
yeai-s,  the  law  ])resumes  the  infant  <AV/  i/i<-(f/M.r.  If  the  state 
Avould  establish  the  infant  to  be  dolt  cajMix  (for  somethncs 


UPHTONE  I'.  THE  PEOPLE. 


395 


iinilUla  siipph't  wUitem),  the  prhixi  fmue  case  of  iiiciip.icity  to 
coimnit  ci'iiuo  must  1h)  overcomo  by  "ovidonco  strong  iiiul  clear 
beyond  all  (loiil)t  and  contrjidiclion."  4  IJhiek.  Com.,  :i4;  Misliop, 
Crim.  l.a\v,  ^',^  2^4,  I's."),  I's.^^/y  Stufr  r.  llidulhj,  4  llarr.,  utid; 
AiKjeloc.  J^n/ilc,  1m;  JU.,  '■>\)\).  h\  such  cases  the  oii>i.s  is  on  the 
state.  The  evidence  in  the  present  case  cannot  bo  regarded  of  the 
cliaract<'r  indicated  by  lilackstone.  Indeed,  no  ell'ort  seems  to 
have  been  made  at  the  trial  to  show  the  delendiint  ])()ssesscd 
criminal  capacity.  And  the  instructions  mentioned  \V(U'e  well 
calculated  to  U'ad  tiie  jury  to  iiU'er  that  without  evidence  show- 
ing such  ci'iminal  capacity,  still  they  wiM-e  justified  in  convict- 
ing d(>iendant  even  of  murder  in  the  lirst  degree.  And  if  we 
treat  the  sixth  instruction  asked  by  dei'eiulant  as  given,  which 
is  marked  on  the  margin  "refused"  {Itarhai  v.  //r/'/o/v/,  48 
Mo.,  ',Vl'-\),  this  would  not  hell)  the  matter, as  it  teaches  a  dilfer- 
ent  doctrine'  from  those;  already  mentioned  respecting  the 
(picstion  of  age,  ami  would  oidy  have  been  but  too  well  cal- 
culated to  mislead  the  jury.  Therefore,  judgment  reversed 
and  I'ause  remanded.     All  concur. 

.\()TK. —  By  tilt'  .stiilutc  of  Illinois  ail  infant  under  tho  a^c  of  ton  yi'urs 
is  iiicupalile  of  coniMiittiii}^  crinu',  and  cannot  lie  eouvictcd  of  any  crinic  or 
niisdi'nu'anor.  At  tlic  a^n  of  foiirti'i'U  tho  law  luvsiiinos  caiiaeily,  without 
proof  of  a  knowli'dj^o  of  j^ood  and  evil,  hut  hot  ween  these  a;j,i  s  tin.'  evideueo 
of  that  nialiee  whieh  is  to  supply  af;o  nuist  ho  stronj;  and  dear  heyond  all 
(louht  and  oontradietion,  as  the  priiiid  favie  i)resuini)tiou  is  thiit  tho  party 
is  iloli  iiinipti.c.     Aiit/ilo  r.  Tlir  Pcojilf,  i)0  111.,  »'()!). 

riicdiiuiiiiiiirdtcd  tliinitH. —  In  }\'iijyiiis  v.  The  Piopk;  Q'-i  U.  S.,  405,  it 
was  hold  (tJlilVord,  Justiee,  dissenting)  that  iu  a  trial  for  honiieido,  where  it 
is  left  in  (louht  whether  tho  defendant  or  tho  di'ee;used  coniuieneed  tho  en- 
counter which  resulted  in  death,  it  is  conipotoiit  to  ]rt'ove,  under  certain  cir- 
ciunstauces,  threats  of  violence  made  hj-tho  deceased  against  the  defendant 
though  not  provioubly  brought  to  dofondiuit's  knowledge. 


UrsTONE  V.  Thk  People. 

(109  III.,  169.) 

McuniCR:  Insanity  produced  by  into.ricdtion — Emdence  —  Instnictions — 

E.vpiiin. 

1.  Insanity  puoduced  by  intoxication,  as  a  defense.— Temporary  in- 
sanity jiroduced  immediately  hy  intoxication  furnishes  no  excuse  for 
tho  conunission  of  a  homicitle  or  t)ther  crime,  but  u  fixeil  insanity  does. 


390 


AMERICAN  CRIMINAL  REPORTS. 


A\nicthcr  a  party  committing  a  crime  is  imdor  tlio  influence  of  a  fixod 
insanity,  or  a  ti'mpoi-ary  one  induced  immediately  l)y  intoxication,  is 
a  ([uestion  of  fact  for  the  jury,  and  their  verdict  will  not  1k'  disturhcd 
unless  it  is  clearly  against  the  evidence. 

2.  While  it  is  true  there  must  be  a  joint  imion  of  act  and  intention,  or 
criminal  negligence,  to  constitute  a  criminal  olfense,  yet  when  without 
intoxication  the  law  will  imiiute  to  the  act  a  criminal  intent, —  as,  in 
the  case  of  a  wanton  killing  of  another  without  provocation,  voluntary 
drunkenness  is  n>t  nvailable  to  disjjrove  such  intent,  so  as  to  re<hice 
the  crime  from  nmrder  lo  manslaiighter, 

y.  Voluntary  intoxication  furnishes  no  excuse  for  crime  committed  under 
its  influence,  even  if  the  intoxication  is  so  extreme  ti-s  to  make  the 
author  of  the  crime  unconscious  of  what  Lo  is  doing,  or  to  create  a 
teniporiu'y  insanity. 

4.  Samk  —  Eviui;xi'K  of  defendant's  previous  habits  of  intoxication.— 

On  the  trial  of  a  defendant  for  nmrder,  when  insanity  is  si't  u|)  in  de- 
fense, and  he  is  shown  to  have  been  intoxicated  at  the  tim(!  of  the 
homicide,  evidence  of  his  ])revious  intoxication  will  be  pMperly  re- 
ceived from  the  prosecution,  as  bearing  upon  the  (|Ui'stion  of  iiiln.xica- 
tion  at  the  time  of  the  killing,  and  of  the  conduct  of  the  defendant 
while  in  that  state. 

5.  SaMF-;  —  KlCSTRAlXlNO    VIOI.ENt'E    OK  A    I'HISONEU    I'ESDINO   MOTION    lOrt 

A  NEW  TRIAL. —  After  the  trial  and  conviction  of  a  prisoner,  upon  a 
charge  of  murder,  uptin  the  hearing  of  a  motion  for  a  new  trial,  wliicli 
had  been  contiiuicd  to  a  subseciuent  t<'rm,  the  |iris<iner  bi'oke  out  iiili> 
manifestations  of  rage  and  vioU'iice  towards  theoflicers,  and  attemiitcil 
to  break  awaj'.  Thereupon  handcuffs  wei-e  placed  iipon  his  wrists  to 
restrain  him.  It  was  held  there  was  no  error  in  tiuis  preserving  ordii- 
and  protecting  the  sheriff  and  his  bailiirs  from  violence,  and  that  it 
could  not  aHect  the  justness  of  the  verdict  at  the  jireceding  term,  nor 
the  sentenci'  following  the  overruling  of  the  motion  for  a  new  trial. 

6.  Instructions  — Statixo  abstract  proposition  of  law.— The  giving  of 

an  instruction  stating  an  abstract  prin(  iple  of  law  not  appli("il)Ie  in  a 
criminal  case  is  not  error  unless  the  principle  stated  is  erroneous. 

7.  Same  — CoNSTiiUED,  as  excixdino  defense  of  insanitv.— On  the  trial 

of  (me  for  murder,  insanity  being  relied  on  as  an  excuse,  the  court  in- 
structed the  jury  that  if  the  killing  had  been  shown  by  the  evidence, 
beyond  a  reasonable  dimbt,  to  have  been  tlio  act  of  the  defendant,  the 
law  presumes  it  nnu'der,  ]irovitle(l  they  further  believe,  from  the  evi- 
dence, that  no  circumstances  existed  excusing  or  justifying  the  a(  t,  or 
mitigating  it  so  as  to  make  it  manslaughter.  Jlclil,  that  tlu*  itistrin- 
tion  was  not  liable  to  the  objection  of  excluding  the  defense  or  excuse* 
of  insanity,  but,  on  the  contrary,  it  recogjii/.ed  tiie  fact  there  might  he 
an  excuse  for  the  act. 

8.  jVnd  in  the  same  ca.se,  an  instniction  contained  a  proviso  that  if  the  jmy 

further  believed,  from  the  evidence,  beyon<l  a  re.isonable  doubt,  tluil 
the  blows  were  struck  with  malice  aforethought,  eitlier  express  or  im- 
plied, to  find  the  defendant  guilty.  Ifi'hl,  that  the  instruction  did  not 
exclude  Iho  defense  of  insanity,  which,  if  it  existed,  would  show  an 
absence  of  malice  aforethought. 


UPSTONE  i:  THE  PEOPLE. 


307 


0.  Evidence  — In  rebuttal  — Time  of  admission.— Tlic  time  of  receiv- 
ing evidence  is  so  much  a  matter  of  discretion  with  the  court  tiying  a 
case,  that  it  will  not  be  a  ground  for  reversing  a  judgment  that  evi- 
dence is  allowed  in  rebuttal  which  in  strictness  is  not  iiroperly  so 
receivable. 

1(1.  Same  — Opinions  of  persons  not  experts,  as  to  sanity. —  On  the  trial 
of  one  for  crime,  the  opinions  of  neighbors  and  acquaintances  of  the 
defendant,  who  are  not  experts,  may  bo  given  as  to  Lis  sanity  or  insan- 
ity, founded  on  their  actual  observations. 


Writ  of  Error  to  the  Circuit  Court  of  Winnehaffo  Countv: 
the  Hon.  William  Brown,  Judge,  presiding. 

M/:  A.  J.  iropl'hiHy  3rr.  ?r.  J.  Aldrieh  and  2£r.  John  L. 
Pratt,  for  the  ])laintifr  in  error. 

JAr.  Jtfi)i<\i  JfcCartnci/,  attorney -general,  Jfr.  Charles  A. 
iro/'Z's',  slate's  attorney,  Mr.  Charles  E.  Fuller  and  Messrs. 
Carnes  <£'  Denton,  for  the  ]ieoplo. 

Mr.  Chief  Justice  SnF.i.nox  delivered  the  opinion  of  the  court. 

The  grand  jury  of  \)q  Kail)  county  found  an  indictment 
against  Walter  Upstone  for  tlie  niurdiU"  of  one  Peter  !^[elson. 
A  change  of  venue  was  taken  bv  the  defendant  to  Winnebaoo 
county,  and  a  trial  had  in  tlu^  circuit  court  of  that  county,  at 
its  January  term,  1SS3,  resulting  in  a  verdict  of  guilty,  and 
fixing  the  ])unishment  at  ini[)i'is()nnient  in  the  penitentiary  for 
seventeen  years.  A  motion  for  a  ncnv  trial  was  made  and 
overruhnl,  ami  sentence  was  piisscd  upon  the  defendant  in  ac- 
cordance with  the  verdict.  It  is  insisted  that  the  evidence  was 
insulHcient  to  sustain  the  verdict. 

The  iH'.micide  occurred  undtM*  these  circumstances:  It  took 
place  on  Suiulay.  February  '»,  1SS2,  in  the  blacksmith  shop  of 
the  defendant,  situated  on  the  main  street  and  at  the  most  pub- 
lic ])lace  in  the  village  of  Fielding,  in  De  Kalb  county.  About 
2  o'clock  in  the  afternoon  of  that  day  one  of  the  witnesses. 
George  Clark,  passing  along  the  street  on  horseback,  saw  the 
defendant  standing  in  his  blacksmith  shop  door  swinging  a 
liammer  and  singing,  and  as  the  witness  approached  near,  the 
defendant  said  to  him:  "  George,  look  here."  The  defendant 
then  went  inside  the  shop,  and  witness  saw  him  strike  some- 
body on  the  lloor  twice  with  a  scoop  shovel,  and  afterwards 
f.vico  with  a  sledge-hammer.    lie  then  told  witness  to  go  and 


398 


AMERICAN  CRIMINAL  REPORTS. 


toll  soiiip  one  tliere  Avas  a  dead  man  there.  The  witness  wont 
and  gave  in  formation  of  what  he  luid  soon,  and  on  his  return 
a  crowd  liad  collected,  and  Peter  ^lelson  was  found  lyint"'  on 
the  floor  hadly  bruised,  and  his  skull  fractured.  The  killing' 
was  undisputed.  The  theory  of  the  defense^  was,  that  the  de- 
fendant was  insane;  that  of  the  prosecution,  that  lie  was  intox- 
icated. 

It  was  in  evidence  that  the  defendant  and  the  dcn'oasod  were 
intimate  friends;  that  on  the  day  before  (Saturchiy)  they  wont 
to  ]Monro(\  iive  miles  distant,  to  a  pi>;oon-sho!)t;  that  a!)f>ut  1 
o"clt»ck  on  the  Suiulay  of  the  homicide,  a  witness  saw  the  de- 
fendant in  his  yard,  and  he  called  to  the  witness  to  come  ov(  r. 
Avho  did  so,  and  went  into  dolondant's  house;  defendant  mixed 
nj)  a  drink  for  them  l)oth  to  take,  which  was  alcohol,  as  witness 
thoug-ht;  witness  remarked  that  his  was  too  warm;  d(>fondaiit 
rei)lied,  i)orhaps  it  was  not  strong-  enough  for  him,  and  put  in 
some  more  li(pioi'.  and  tlion  it  was  too  strong;  witness  could 
not  drink  it  all;  defendant  di'ank  his.  Dofondant  said,  "  Dutch 
Pete  is  in  the  slio])  taking  a  little  naj),"  and  h<»  would  take  wit- 
ness' glass  <mt  and  I(>t  Jiini  driidc  it;  he  tool'  it  out,  and  witness 
went  with  him  to  th(>  shoj);  Melson  was  there  asleep,  as  tlie 
witness  judged,  his  head  ami  siiotddors  ieaning  against  liio 
sho]),  and  partially  sitting  on  tla;  vice-boncb ;  defendant  st>t  the 
glass  on  the  bench  and  went  up  and  talked  t(>  ^lelson,  pubed 
him  a  little,  and  Melson  ])artially  fell,  and  settled  down  on  the 
floor  among  a  lot  of  rubbish,  "so  druidc  he  couhhi't  stand." 
"Witness  did  not  hoar  him  say  a  woi'<l;  saw  no  bi'uises  on  iiini 
then;  witness  holp(>d  him  up  and  put  him  on  the  clean  llooi. 
and  defendant  doulik'd  U[>  his  cloth  apron  and  [)ut  it  mnhT 
^Felson's  head;  witness  then  loft  tliem;  the  glass  was  left  sit- 
ting there.  Aljout  tlii'ee-(piarters  of  an  hour  after,  the  alarm 
was  given  that  defendant  ha<l  murdered  somolxtdy.  Dob'ud- 
ant  had  Ijoou  soon  on  that  day  stamling  in  the  doorway  of  his 
shop  driidving  something  out  of  a  tmid>ler,  and  then  sto|)|)iMg 
back  in  the  shop.  An  empty  (juart  bottle  was  found  in  tlio 
stove,  which  had  contained  what  the  witness  thought  was  alco- 
hol. On  Thm'sday  or  Friday  befoiv,  dofetnlant,  together  with 
two  othei's,  had  purchased  a  gallon  of  alcohol,  one  paying  for 
a  half  gallon,  an<l  defendant  and  the  other  for  one-half,  which 
they  divided  between  thenL 


UPSTONE  V.  THE  PEOPLE. 


399 


Thcro  was  in  evidence  a  conversation  had  with  defendant 
some  two  or  more  years  before,  when  he  said  tliat  if  he  let 
li(|nor  alone  ho  was  all  rio-ht,  and  that  wlien  he  (h-ank  liquor  it 
made  him  '' crazy  wild."'  The  concurrent  testimrny  of  the 
many  witnesses  ])resent  on  the  occasion  of  the  liomicide  was, 
tliat  the  defendant  was  intoxicated.  The  manifestations  of  con- 
duct on  tlie  ])art  of  the  defendant  at  the  time  Avero  of  a  very 
stran<«e.  wild  and  irrational  character.  Very  much  evidence 
was  <>iven  as  to  insanity  in  memhers  of  the  family;  that  his 
mother,  a  sister  and  three  brotiiei'S  were  insane,  the  mother, 
sister  and  one  brother  dying  in  insane  hospitals;  that  an  aunt 
of  the  mothei'  Avas  insaiu*,  and  two  of  iier  sisters  died  in  insane 
JKtspitals,  ^luch  testimony  of  neiohbors  and  acquaintances 
was  given. —  on  one  side,  that  del'eiulant  was  insane,  on  the 
otiicr  side,  that  he  was  saiu?.  The  superintendent  of  the  insane 
asylum  at  Klgin,  a  medical  man,  gave  it  as  his  opinion,  as  an 
expert,  that  fi'om  the  testinumy,  taking  it  to  bo  true,  defendant 
was  iiisane.  This  was  before  the  rebutting  testimony  of  the 
l)i'(»seciilion. 

The  (piestion  in  the  case  Avas,  whether  there  Avas  but  a  tem- 
porary insanity,  produced  immediately  by  intoxication,  or  fixed 
insiinity.  If  it  Avas  tlie  former,  it  fui'uishes  no  excuse.  Ques- 
tions of  this  kind  are  pecidiarly  (piestions  for  a  jury  to  deter- 
iiiine,  and  upon  settled  jjrinciph^  tiiis  court  shfiuld  not  interfere 
to  disturb  the  verdict,  tmless  it  is  clearly  contrary  to  the  evi- 
dence.   AVe  camu)t  say  tliat  is  so  in  this  case. 

Vari()n:;  rulii\gs  of  the  coiirt  were  excei)ted  to,  as.  tiuit  evi- 
(l(MU'e  was  received  in  relnittal  improperly;  tliat  opinions  as  to 
(iel'endant's  sanity  were  admitted,  and  evidence  of  defendant's 
previous  Iial>its  of  intoxication.  The  tini(>  of  receiving  evidence 
is  much  in  a  coiu't's  discretion,  and  it  would  not  be  ground  for 
reversing  a  judgment  that  evidence  was  permitted  to  bo  intro- 
(hiced  in  rebuttal  which  in  strictness  was  not  properly  so  re- 
ccivalth'.  Hvidence  Avas  given,  on  both  si(U.'s.  of  o[)inions  of 
(iefeiuhint's  neigliliors  and  aciiuaintances  as  to  his  insanity, 
fuiMKh'd  np(»n  them- own  kno^vledge.  E.xception  is  taken  tosuch 
testimony  admitted  on  tlie  part  <)f  the  [teople.  AVeare  of  opinion 
that  witnesses  who  are  not  ex[)erts  iiuiy  give  their  opinions, 
founded  upon  observation,  on  the  question  of  sanity.  "Whar- 
ton on  Crini.  Evidence,  sec.  -117;  2  Ired.,  78,  Chiry  v.  Clary; 


ioo 


AMERICAN  CRIMINAL  REPORTS. 


"Wharton  &  Stille's  Med.  Jur.,  sec.  272;  dissoiitinj^  opinion  of 
Doe,  J.,  in  State  v.  Pike,  49  N.  II.,  408,  whore  the  authorities 
are  extensively  collated;  Ilarfly  v.  Merrill,  50  l!^.  II.,  2'>7;  Iii» 
V.  Taylor,  45  ill.,  485;  Rutherford  v.  ^Ln-rh,  77  111.,  3<.>7;  Car- 
penter V.  Cah'ert,  S3  id.,  03.  Evidence  of  previous  intoxication 
on  the  part  of  defendant  was  properly  enouf>li  admitted,  iis 
bearing  upon  tlie  cpiestion  of  intoxication  at  the  time  of  the 
homicide,  and  of  the  conduct  of  defendant  wlien  in  tliat  stiite. 

The  second  instruction  given  to  tlie  jury,  for  the  people,  Avas: 

"That  if  the  kilhng  of  the  person  mentioned  in  the  indict- 
ment has  l)ecn  satisfactoi-ily  shown  by  the  evidence,  lieyond 
all  reasonable  doubt,  to  have  been  tlie  act  of  tlie  defendant, 
then  the  law  presumes  it  to  liave  been  murder,  provided  tlie 
jury  further  believe,  from  the  evidence,  beyond  a  reasonalile 
doubt,  that  no  circumstances  existed  excusing  or  justifying  the 
act,  or  mitigating  it  so  as  to  make  it  manslauglitcr." 

It  is  objected  to  this,  that  it  tells  the  jury  they  must  convict 
the  defc^ndant  of  murder  or  manslaughtei\  "We  do  not  so  read 
the  instruction.  It  left  the  jury  free  to  accpiit,  if  thei'e  w(M'e 
circumstances  wliich  excused  or  justified  the  act.  It  is  fiu'tlier 
said  tlie  instruction  Ignores  the  (piestion  of  the  insanity  of  the 
defendant.  Wo  do  not  thiidc  so.  The  instruction  recogniz(>s 
there  might  be  an  excuse  for  the  act,  and  instructions  for  the 
defendant  abundantly  informed  the  jury  that  insanity  would 
be  a  defense,  which  the  jury  would  take  to  i)e  an  excuse.  It 
does  not  matter  what  may  bo  the  technical  meaning  of  excus- 
able, but  how  the  jury  woidd  understand  it,  and  whatever  was 
a  defv'Mse  they  would  understand  as  matter  of  excuse. 

It  is  objected  to  the  third  instruction,  that  it  states  an  abstract 
principle  of  law  not  ai)plicable  to  the  case.  This  would  not 
bo  error  unless  the  priiu'i])le  stated  were  erroneous. 

It  is  objected  to  the  fourth  instruction,  that  it  substantially 
instructed  the  jury  to  lind  the  defendant  guilty,  regardless  of 
the  qviestion  of  his  mental  condition  at  the  time  of  the  homi- 
cide. The  question  of  mental  condition  was  covenul  by  the 
proviso  to  the  instruction,  "provided  you  further  beli(ne,  from 
the  evidence,  beyond  a  reasonable  doubt,  tliat  the  blows  were 
struck  with  malice  aforethought,  either  expressed  or  implied." 
If  there  was  the  insanity  which  was  claimed,  then  there  would 
bo  the  absence  of  malice  aforethought. 


UPSTONE  V.  THE  PEOPLE. 


401 


The  followiii<^  further  instructions  were  given  on  behalf  of 
the  people: 

''  7.  Altliough  it  is  the  law  in  this  state  that  a  criminal  of- 
fonse  consists  in  a  violation  of  a  pul)lic  law,  in  the  commission  of 
wliich  there  must  be  a  union  or  joint  operation  of  act  and  in- 
tention, or  criminal  negligence,  yet  wlierc,  without  intoxica- 
tion, tlic  law  Avill  impute  to  tlie  act  a  criminal  intent,  as  in  tlie 
case  of  wanton  killing  without  pi'ovocation,  voluntar}'^  drunken- 
ness is  not  avaihible  to  disprove  such  intent. 

"  8,  That  if  you  believe,  from  the  evidence,  beyond  a  rca- 
soniible  doubt,  tliat  the  defendant,  when  voluntarih^  intoxi- 
cated, committed  the  liomicide  charged  in  the  indictment, 
under  such  circumstances  as  would  have  constituted  such  an 
act,  by  one  not  intoxicatetl,  murder,  then  you  are  instructed 
that  such  intoxication  would  not  reduce  the  crime  of  the  de- 
fendant from  murder  to  manslaughter,  nor  would  such  intoxi- 
cation 1)0  any  excuse  or  defense  to  tlie  act. 

"  9.  Tlie  court  further  instructs  you,  that  if  you  believe,  from 
the  evidence,  beyond  a  reasonal)le  doubt,  each  of  the  following 
])ropositions,  to  wit:  that  at  about  two  hours  before  the  com- 
mission of  the  alleged  homicide  defendant  was  sane,  and  had 
the  power  to  abstain  from  drinking  alcohol;  that  defendant 
then  knew  that  the  drinking  of  alcohol  by  him  would  have  the 
effect  to  render  him  insane  or  crazy;  that  <lefendant,  so  know- 
ing the  (^(Tect  of  alcohol  upon  him,  and  being  sane,  and  having 
the  power  to  abstain  from  taking  alcohol,  did  then  and  there 
voluntarily  drink  alcohol;  that  the  alcohol  so  drank  by  the 
defendant  then  and  there  made  him  insane  or  crazy;  that  while 
insane  or  crazy  from  the  effects  of  such  alcohol  defendant 
committed  the  act  charg<>d  in  the  indictment,  at  the  time  and 
place,  and  in  the  manner  and  form  therein  charged,- — then  you 
should  find  defendant  guilty." 

The  same  criticism  is  made  with  respect  to  these  first  two  as 
before  —  that  they  ignore  the  prisoner's  defense.  There  clearly 
is  no  foundation  for  saying  this  as  to  the  eighth,  and  as  to  the 
seventh  that  was  only  laying  down  the  abstract  principle  of 
law  as  to  voluntary  drunkenness  being  an  excuse  for  crime; 
and  in  doing  that  merely  it  was  not  necessary  to  incumber  the 
instruction  with  any  exception  of  the  defense  that  was  made 
Vol.  IV -20 


m 


AMERICAN  CRIMINAL  REPORTS. 


m 


for  the  prisoner,  3Iitchell  v.  JfU/iolIatid,  IOC  III.,  175;  J^o;/;/ 1'. 
Th'i  People,  02  id.,  598. 

The  le^al  j)rinciple  asserted  in  tlioso  instructions  is  disputed. 
The  principle  is  sustained  by  tlie  decisions  of  this  court,  and  is 
the  svell  settled  doctrine  of  the  common  law.  lioffertij  v.  Thr 
People,  •;!',  111.,  121;  JL-Inti/re  v.  The  People,  ;],S  id.,  511;  The. 
P,:,y  .  Voyr/v.',  18  X.  Y.,  9;  United  States  v.  2[i:Ghce,  1 
Curt'  ,    HHiijanv.  The  People,  SON.  Y,,  551.     In  Bishoji 

on  Crim.  Law.  sec.  -100,  the  author  lays  it  down :  "  When  a  man 
voluMtunlv  bet.  )rMos  drunk,  there  is  the  wronpful  intent,  and 
if,  while  lo.j  fiu  ^;une  to  have  any  further  intent,  he  does  a 
wronui'ul  act,  the  !Ut(Mit  to  drink  coalesces  with  the  act  while 
drunk,  and  for  this  combination  of  act  and  intention  lie  is 
liable  criminally.  It  is,  therefore,  ti  le<2;al  doctrine,  a()plical)le 
in  ordinary  eases,  that  voluntaiy  intoxication  furnishes  no  ex- 
cuse for  crinu^  conuuilted  under  its  iniUience.  It  is  so,  even 
Avhen  tlu!  intoxication  is  so  extreme  as  to  malce  a  person  im- 
conscious  of  what  he  is  doii><>",  or  to  create  a  tempoiary  in- 
sanity/' Our  statute  declares  that  "d'  ankcnness  shall  not  he 
an  excuse  for  any  crime  or  misdemeanor." 

We  do  not  think  the  last  above  instruction  is  objectionable 
in  the  res[)cct,  as  claimcHl,  of  its  jiartial  I'ecital  of  the  evidence^ 
nor  in  the  res))ect  that  there  is  no  i)asis  in  the  evidence  for  the 
propositions  stated.  There  was  evidence  of  the  defendant's 
acts  and  conduct  alH)ut  an  hour  before  the  homicide,  affording 
ground  of  inference  us  to  his  mental  state  ivlK>ut  two  hours  he- 
fore.  As  to  his  power  to  al)stain  from  di-ink-in/j;  alcohol,  there 
was  evidence  of  his  having  once  abstained  for  the  ])eriod  of 
about  a  year,  after  sifi^ninf^  a  pledij^e  not  to  <lriidc;  an<l  as  te 
whether  the  alcohol  drank  by  the  defendant  made  him  insane 
or  crazy,  his  conduct  at  the  time,  and  what  he  had  done  shortly 
before,  were  in  evidence  for  the  jury  to  judn^c  from,  as  well  as 
kis  own  prior  statement  "that  when  he  drank  liquor  it  nuuhi 
him  era,zy  wild." 

We  perceive  no  error  in  refusin<^  or  modifying- instructions 
asked  l>y  the  defenilant.  The  jviry  were  instnicted,  on  the 
part  of  the  defendant,  most  fully  and  most  favorably  for  him 
upon  the  subject  of  insanity  as  a  defense,  in  all  aspects  heav- 
ing upon  the  case. 


RITZMAN  V.  THE  PEOPLE. 


403 


At  tlic  next  term  after  the  verdict  the  defendant  was  brought 
into  open  court,  when  the  motion  for  a  new  trial,  made  at  the 
])revious  term,  was  disposed  of,  and  as  the  court  was  about  to 
pass  sentence  tlie  prisoner  broke  out  into  manifestations  of  vio- 
lence, and  had  a  struoole  with  tlu^  ollicers  to  break  away  from 
them,  and  was  attempting  to  comnnt  acts  of  violence  upon 
them,  whereupon  tliey  placed  a  pair  of  handcuffs  on  his  Avrists, 
and  he  ceased  his  struggles.  At  this  treatment  defendant's 
counsel  made  objection,  but  the  court  overruled  the  objection, 
and  suffered  what  had  been  done,  deeming  it  necessary  to  pro- 
tect the  sheriff  and  his  bailiffs  from  the  violence  of  defendant, 
and  for  the  preservation  of  order  in  court.  This  is  alleged  as 
error.  What  was  done  could  have  had  no  influence  in  the 
finding  of  the  verdict  the  term  before,  nor  upon  the  sentence, 
it  following  as  a  consequence  upon  the  verdict  and  the  over- 
ruling of  the  motion  for  a  new  trial.  It  did  not  affect  the  just- 
ness of  the  verdict  or  the  sentence,  and  we  fail  to  see  why  it 
should  be  any  ground  f(n"  the  reversal  of  the  judgment. 

Finding  no  material  error  in  the  record,  the  judgment  must 

be  affirmed. 

Judfjment  affirmed. 


KrrzMAX  v.  Tnt:  People. 

(110  111.,  363.) 

Murder  :  Joint  trespassers  —  Evidence  —  Instructions. 

Encouragino  commission  of  unlawful  act.  resulting  in  iiomicidk  — 
LiAKiLiTV  FOR  coNSKijUENCES. —  Sevoral  iKTSons  of  a  party  pas.sing  along 
a  highway  got  out  of  tlio  wagon  in  which  thoj'  were  traveling  .and  went 
into  an  orcliard  without  i)ernussioii.  The  owner  ordered  them  to  leave, 
whii'li  they  r(>fused  to  ilo,  when  others  from  the  wagon  entered  the 
orchard,  armed  with  clods  of  dirt,  and  assaulted  the  owner,  using  very 
ofTensive  languiige  to  him,  and  one  of  the  i  arty  struck  the  owner,  with 
a  clod,  upon  the  hack  part  of  the  neck,  felling  him  to  the  ground,  from 
which  hlinv  death  ensued  in  a  few  minute's.  It  apjieared  that  one  of  the 
intruders,  who  wa.s  tried  sepaiately,  took  a  piut  in  the  affray,  and  tried 
to  kick  the  decciiseil  while  lying  prostrate  from  the  blow.  It  was  held 
that  it  was  not  necessary  to  show  that  he  threw  the  missile  which  caused 
the  death,  in  order  to  sustain  his  conviction  for  manslaughter.  It  was 
Kufik'ient  that  ho  was  i)resent,  encouraging  the  perpetration  of  the 
offense,  to  nialvo  liim  equally  guilty  with  the  pai'ty  who  struck  the  fatal 
blow. 


401 


AMERICAN  CRIMINAL  REPORTS. 


2.  Exclamation  op  one  of  several  persons  xriio  ilvd  committkd  an 

UNLAWFUL  ACT. —  Spvorul  jjcrHons,  incJuding  one  who  was  put  upon  trial 
for  murder,  while  traveling  along  the  road  entered  an  orehard  by  the 
road  side,  when,  without  justification,  in  a  ditHoulty  with  the  owner, 
who  ha<l  ordered  them  to  j^n  ohl  oi  I.N  orchard,  some  one  of  the  parly, 
by  a  blow  with  a  clod,  killed  the  owner,  and  they  all  then  got  into  the 
wagon  and  started  toward  th(>ir  homes.  A  party  in  pursuit  of  tlu'in. 
seeking  to  Imve  them  arrested,  passed  the  wagon,  when  some  one  of 
them  called  out,  "  Hello,  good-looking  fellow!  "  or  soinething  like  tiiat, 
but  such  witness  so  addressed  could  not  say  the  defendant  was  in  tlm 
wagon  at  that  tiuie.  It  aj)peared,  however,  from  the  defendant's  own 
testimony,  that  he  did  not  get  out  of  the  wagon  until  after  llu  y 
reached  the  next  iH)int  where  they  stopped.  Held,  that  the  court  jnop- 
erly  refused  to  strike  out  of  the  testimony  the  words  so  spoken  to  the 
witness. 

3.  CRO.SS-EXAMINATION  —  LATITUDE  ALLOWED.—  Gre.at  latitude  shoul<l  always 

be  allowed  in  cross-examination,  especially  in  a  capital  case,  ami  tlie 
court  sliiaild  never  interjiose  except  where  there  is  a  manifest  abuse  of 
the  right. 

•I.  Same. —  Where  a  witness,  on  a  second  examination  as  to  a  ])arti(ular 
transaction,  states  an  im|)ortant  fact  omitted  in  his  previous  account  of 
the  matter,  his  attention,  on  cross-examination,  may  i)roj)erly  !)(>  called 
to  the  fact,  and  he.  \>e  reiiuired  to  explain  why  the  omission  was  made 
in  Ills  lirst  statement. 

i).  Conflicting  statements.— .So,  on  the  trial  of  one  for  murder,  the  deatii 
having  been  caused  by  a  blow  with  a  clod  from  the  hand  of  snme  une 
of  .several  trespassers,  a  witness  who  was  i)rt>sent  at  the  time  of  the 
killing,  stated,  on  his  examination  in  chief,  that  the  defendant  then 
being  tried,  (hiring  the  transaction  cidled  the  deceased  "a  son  of  a 
bitch."  On  cross-examination  the  witness  was  asked  if  in  liis  former 
examination  he  had  made  any  such  statement  as  that.  On  objection, 
the  court  below  held  that  the  in(iuiry  should  bo  limited  to  the  (pn'stinns 
actually  a.sked  and  the  answers  given  in  the  former  examination,  and 
that  the  <piestion  wa.s  improjjcr.  Held,  that  the  rule  laid  down  by  the 
court  was  rather  stringent.  The  incpiiry  might  well  \>c  made,  with  the 
view  to  a.scertain  the  motive  of  the  witness  in  omitting  the  slat(!ment 
on  his  examination  in  chief,  in  ca.se  it  should  turn  out  he  liad  done  so. 

«.  Error  will  not  always  reverse  —  Exclusion  of  evidence. —  Although 
the  court,  on  the  trial  of  a  cause,  may  err  in  the  exclusion  of  evidence. 
or  in  refusing  to  allow  certain  questions  to  Ik)  jnit  on  cros.s-cxamination, 
yet  if  this  court  is  fully  satisfied,  under  the  facts  of  tiie  ca.se,  that  the 
error  could  not  have  affe(;ted  the  result,  the  error  will  afTonl  no  gronml 
of  reversal. 

7.  Instructions  — Whether  sufficient  as  a  whole.- It  Iwing  imjn-aeti- 
cable  to  require  absolute,  literal  accuracy  in  instructions,  it  is  therefore 
sufficient  if  the  instructions,  considered  as  a  whole,  substantially  i)re- 
sent  the  law  of  the  case  fairly  to  the  jury. 

Writ  of  Error  to  the  Criminal  Court  of  Cook  Ci>unty ;  the 
Hon.  T.  A.  Moran,  Judge,  presiding. 


RITZMAN  V.  THE  PEOPLE. 


405 


Messrs.  Moore  <£•  Purnell,  for  the  plaintiff  in  error. 
Mr.  Luther  Laflbi  Mills  and  Mr.  Charles  B.  Morrison,  for 
the  people. 

Mr.  Justice  !Mulkky  delivered  the  opinion  of  the  court. 

The  [)lainti(r  in  error,  Xicliohis  Ititznian,  and  William  Spies, 
were  indicted  in  tlie  criminal  court  of  Cook  county,  at  its  Sep- 
t(Muber  term,  1SS3,  for  the  murder  of  Chai'les  Lovett.  At  the 
following-  Deceml)er  term  Ritzman  was  tried  separately,  before 
the  court  and  a  jury,  upon  said  cliarge.  The  trial  resulted  in 
his  conviction  for  manslaughter,  tlie  jury  iixing  the  term  of 
confinement  in  the  peuiteiitiary  at  eight  years.  The  usual 
motions  for  a  new  trial  and  in  arrest  of  judgment  having  been 
made,  considered  and  overruled,  tlie  court  thereupon  entered 
final  judgment  in  pursuance  of  the  verdict,  to  reverse  which 
Uitzman  has  brought  this  writ  of  error. 

Till!  errors  assigned  (piestion  the  rulings  of  the  court  upon 
(lucstions  of  evidence,  and  upon  the  giving  and  refusing  of 
instructions.  Jt  is  also  claimed  the  evidence  is  insulUcient  to 
sustain  the  conviction,  and  a  reversal  is  asked  on  these  several 
grounds. 

The  circumstances  under  which  the  homicide  occurred  are  as 
follows:  About  5  o'ch)ck  in  the  afternoon  of  August  5,  1888, 
the  accused,  together  with  ten  other  young  men,  was  retmm- 
ing  to  Chicago  by  way  of  Grand  avenue,  from  a  picnic  which 
they  had  attended  that  day  on  the  Desplaines  river,  and  wlien 
within  some  ten  or  eleven  miles  of  their  destination  they  came 
opposite  the  premises  of  the  deceased,  on  the  north  side  of  the 
avenue.  Here  some  of  the  ])arty  left  the  express  wagon  in 
which  they  were  travelling,  and  entered  an  uninclosed  apple 
(trchard,  being  a  part  of  said  premises.  The  dwelling  of  the 
deceased  was  about  twenty  feet  north  of  the  road,  and  on  the 
west  side  of  the  orchard,  .lust  at  this  time  the  deceased  was 
passing  from  his  house  through  the  orchard,  in  an  easterly 
direction,  when  ho  encountered  those  of  the  party  who  had 
entered  the  orchard.  Upon  discovering  them  he  ordered  them 
off  the  i)remises,  which  attracted  the  attention  of  those  Avho 
remained  outside,  whereupon  others  of  the  party,  arming  them- 
selves with  hard  clods  of  earth,  also  entered  the  orchard,  going 
in  tiic  direction  of  the  deceased.    Mrs.  Lovett,  and  a  young 


406 


AMERICAN  CRIMINAL  REPORTS. 


man  by  the  naiuo  of  narry,  wlio  was  boarding  with  tlic  deceased 
at  the  timo,  being  informed  of  the  dilficulty  by  the  children  of 
the  deceased,  left  the  house  and  proceeded  in  haste  to  wliei'c 
the  parties  Averc,  Barry  being  somewliat  in  advance.  1I(> 
swears,  in  substance,  that,  when  he  got  there,  he  saw  a  clod, 
or  what  he  sui)p()sed  to  bo  a  clod,  bound  off  Lovett's  shoul- 
der; that  he  then  ran  to  Lovett  as  fast  as  ho  could,  and,  as  ho 
came  up  to  him,  Lovett  foil;  that  Spies  being  nearest  to  the 
deceased,  witness  "made  for  him,"  when  the  former  stepped 
back  and  struck  at  witness;  that,  at  this  juncture  of  all'airs, 
witness  discovered  llitzmaii,  the  accused,  standing  near  or  over 
deceased,  and  in  the  act  of  kicking  him,  when  witness  jinnpcd 
over  and  shoved  IJitzman  back;  that  Lovett  died  in  about  live 
minutes  after  he  fell;  that  witness  saw  as  many  as  throe  of  the 
party  in  the  orchard,  and  th(!i'e  might  have  been  more;  that 
they  used  profane  and  foul  languiige  both  to  the  deceased  and 
witness;  that  witness  ne.xt  morning  picked  up  a  clod  of  diil 
close  to  where  Lovett  lay  the  evcMiing  before;  that  the  iKiily, 
haviiig  ])roi;eeded  on  their  way,  were  pursued  and  ovei'tulaui, 
and  all  arrested  that  evening  except  the  accused  and  one  otiiei', 
who  succe;>ded,  for  the  time  being,  in  eluding  arrest. 

The  testimony  of  ]\rrs.  Lovett  is  substantially  the  same  as 
Barry's,  so  far  as  the  transaction  in  the  orchard  is  concerned. 
She  j)ositively  identilies  the  (h^fendant  as  being  in  the  orchar.l 
at  the  tiuK!  her  husband  was  killed,  and  actively  partici]);itiii^' 
in  what  was  done.  She  says;  "  D(!fendant  was  trying  to  kick 
my  husban<l  after  ho  fell.  Barry  was  standing  near  my  has 
band,  and  he  pushed  this  young  num  (referring  to  tlio  acciiscili 
back  when  he  tri(><l  to  Icick  my  husband  while  ho  lay  on  the 
ground,  dead ;  1  saw  other  ])(M'sons  there,  but  his  face  is  tW. 
only  one  I  looked  at  that  I  recognize.  .  .  .  AVhile  defend 
ant  stood  over  my  husband  \w  called  him  a  God  damned  soil 
of  a  bitch,  and  tried  to  kick  him  at  the  same  time.  I  /()')/,■>  i/ 
him  in  the  face  and  said,  'you  Inive  killed  him.'  He  looked  at 
me.  T  hiMird  some  one  say.  '  you  have  killed  a  man,'  and  he 
started  and  ran."  Mis.  Lovett  also  identilies  two  clods  of  dirt 
as  having  l)een  picked  up  n(!ar  where  her  husband  lay,  wliidi 
were  produced  in  court  on  the  trial,  and  with  which  the  med- 
ical testimony  shows  the  wounds  causing  Lovett's  death  might 
have  been  produced.    She  also  locates  the  wound  from  which 


RITZMAN  V.  THE  PEOPLE 


407 


lio  (lied  on  tlic  right  side  of  the  neck,  back  of  his  ear,  and 
Doctor- 1  JhithiU'dt  swears  that  Lovett  died  from  tlie  wounds 
described  by  her. 

Cleaver,  one  of  the  party,  admits  he  was  in  the  orchard, 
and  says  lh(^  accused  was  tl)ere  also,  and  near  the  deceased 
when  ho  fell,  though  lu;  did  not  see  the  deceased  receive  any 
blow.  He  fui'tlici'  savs,  when  thev  returned  to  the  wii<'on  and 
got  into  it,  Spies  remarked:  "]My  first  one  didn't  count,  l)ut 
my  second  one  did."  To  which  Kitzniiin  replied:  "Afy  second 
one  counted;  my  fii-st  one  didn't  hit,  juid  my  second  one 
counted."  To  which  Spies  rejoined :  "  AVill  you  stick  to  that? " 
and  Ritzman  said  he  would.  The  witness,  on  cross-examina- 
tion, states  tliat  lie  understood  from  this  conversation  tliat 
Spies  and  Ritzman  iiad  thrown  something  at  Lovett. 

The  case  tlius  made  by  the  people  is  met  almost  exclusively 
by  the  sim])]e  denial  of  the  accused,  who  testitied  on  his  own 
l)chalf.  The  defendant  himself  admits  he  was  j)resent  when 
Lovett  was  killed;  tliat  his  (h:'ath  occurred  at  the  time  and 
place  fixed  by  the  other  witnesses,  and  also  that  it  was  caused 
by  a  blow  gi\eu  by  one  of  the  ]>arty  to  which  he  belonged, 
without  any  excuse  or  justification  whatever.  lie  further 
admits  that  he,  in  com[)any  with  Cleaver,  without  any  author- 
ity, entered  the  orchard  of  the  deceased  for  the  purpose  of 
getting  ap[)les,  and  that  they  were  ordered  out  by  Lovett.  So 
far  there  is  no  mat(>rial  controversy.  Tlie  accused,  however, 
claims  that,  when  he  and  Cleaver  were  ordered  out  of  the 
orchard.  Spies  jumped  out  of  the  wagon,  picked  up  two  lumps 
of  dirt  and  tlirew  them  at  the  deceased,  the  first  one  missing 
liim  and  the  second  taking  effect  and  causing  his  death,  as 
stated  by  the  otiier  witnesses.  While  he  denies  the  language 
attributed  to  him  by  (cleaver  in  the  conversation  which  oc- 
curred after  the  ])artics  had  returned  to  the  wagon,  with  re- 
spect to  tin-owing  at  tlie  deceased,  yet  he  admits  there  was  such 
a  conversation,  iMit  claims  tliat  it  was  between  Spies  and 
Cleaver,  and  not  between  Spies  and  himself.  lie  also  corrobo- 
I'ates  the  stalement  of  J>arry  to  the  effect  that  Spies  assaulted 
IJarry  while  in  the  orchard.  Thus  it  will  be  seen  the  case 
made  by  the  people,  in  several  essential  features,  is  greatly 
strcngtheneil  by  the  testimony  of  the  defendant  himself. 
There  is  other  evidence  we  have  not  commented  upon,  or  even 


408 


AMERICAN  CRIMINAL  REPORTS. 


SO  much  as  adverted  to,  for  the  reason  wo  do  not  consider  it  of 
sutliciont  inipoi'tance  to  demand  special  notice.  Takin;^'  it  as  u 
whole,  wo  think  the  evidence  not  referred  to  rather  stren<^th('ns 
the  case  made  by  that  part  of  the  testimony  specially  luiticcd. 

Fnnn  the  for<'<jfoin^- outline  it  satisfactorily  ai)i>(uir.s  that  on 
the  ."tth  of  Au;.>'ust,  issii,  while  the  deceased  was  at  home, 
(piietly  and  peuceahly  attendin*^- to  his  own  atl'aiiN,  his  ])remis('s 
were  unlawfully  invaded  by  a  party  of  ti'espassiu's,  the  arcuseij 
l)ein<i'  oiU!  of  the  lunnher;  that  when  ordered  olf  th(»  premises, 
instead  of  l(>a\  iu;^'.  as  they  slK)uld  havt>  done,  they  set  upon  him, 
and  wantonly  slew  him  in  the  ])i'esi»nce  of  his  own  family, 
without  a  shadow  of  justification  <»!•  excuse, — -and  yet  w(^  are 
tohl  the;"e  can  he  no  convicticm  in  this  ease,  because  the  evi- 
dence does  n(»t  show,  ht'youd  a  i-easonahlcMlouht,  the  very  hand 
that  hurKul  the  fatal  missile  which  sent  him  intoetei-uity  with- 
out a  moment's  warning'.  So  far  as  thes  accused  is  concerned, 
under  the  [troofs  in  this  case,  we  think  it  wholly  immatei'ial 
whetlKM"  the  missile  in  (piestion  was  thrown  by  th(i  hand  of  the 
accused  or  of  some  one  of  his  co-trespassers.  That  the  de- 
fendant was  present, —  and,  t(»  say  the  least  of  it,  encom'a<^in;4' 
the  pei'pelration  of  the  olfense, —  caniu)t  be  denied,  mdess  we 
are  pi'e[)ared  to  set  aside  the  testimony  of  .Mrs.  Lovett  ant! 
liai'ry,  two  wholly  disinterested  witnesses,  and  accept  the  un- 
supported statements  of  the  aconsed,  which,  of  course,  we  can- 
not do.  Ami  if  the  defendant  was  so  present  (iucoura^in^^the 
i)en)etrat!on  of  the  offense,  it  is  hardiv  necessarv  to  sav  that, 
by  the  express  provisions  of  our  statute,  lu;  is  made  a  princi[)al, 
and  etiually  guilty  with  the  one  who  personally  <^ave  the  fatal 
blow.  l>oth  these  witnesses,  as  we  have;  already  seen,  swear 
positively  he  was  not  oidy  [U'esent,  usine-  abusive,  profaiu)  and 
obscene  language,  but,  even  after  the  <l(;ceased  was  knocked 
down,  and  while  in  a.  <lyin<^'  condition,  IJarry  had  to  interpose 
to  prevent  the  defendant  from  kicking-  his  ])i'ostrate  form, 
and  yet  we  are,  in  effix-t,  asked  to  say  he  was  not  present  aid- 
ing or  encouraging  the  offense.     This  wo  cannot  do. 

It  appeal's  that  Earry,  as  already  stated,  in\modiately  after 
the  homicide,  went  in  pursuit  of  the  party,  passing  them  on 
the  Avay,  s»)me  lil'teen  minutes  afterwards,  b(,'tween  Lovett's 
and  Whisky  I'oint,  whei-e  the  arrest  was  made.  Witness  says 
all  of  the  party  that  he  saw  were  in  the  wagon  when  ho  passed 


RITZMAN  V.  THE  PEOPLE. 


40J» 


them,  but  ho  could  not  say  tliat  ho  noticctl  the  defendant,  oi' 
wliother  he  was  in  the  wa^on  or  not;  that  in  passing,  ono  of 
the  ]»ai'tv  lialloocd  out,  "  IleUo.  good-lookin<^'  fellow!"  or 
souK'tlnng  like  that.  The  court  was  asked  to  strike  this  out  of 
the  testimony  and  exclude  it  from  the  jur}^,  on  the  ground  it 
did  not  allirmatively  appear  the  accused  was  present,  which  the 
court  refused  to  do,  and  this  is  assigned  for  error.  There  is  no 
ci'i'or  in  the  ruling  of  the  court  on  this  question.  The  evidence 
clearly  shows  that  the  accused  got  into  the  wagon  at  Lovett's, 
and  he  swears  himself  that  he  was  with  the  party,  and  got  out 
of  the  wagon  at  Whisky  Point,  so  that  ho  must  have  been 
j)resent  when  the  language  complained  of  Avas  used.  There  is 
nothing  in  the  ol)jection.     Indeed,  it  seems  frivolous. 

The  next  objection  relates  to  the  exclusion  of  evidence. 
I'iirry  having  stated,  on  his  examination  in  chief,  that  liitzman, 
(luiing  the  altercation  in  the  orchard,  called  Lovett  a  ''son  of 
a  bitch,"  was  asked,  for  the  pur[K)ses  of  im[)oachment,  if,  in 
his  former  examinations,  he  had  made  any  such  a  statement 
as  that.  On  objection  by  the  people,  the  court  ruled,  in  etfcct, 
that  the  in(juiry  should  be  limited  to  the  cpiestions  actually 
asked  and  the  answei's  given  in  the  former  examinations,  and 
that  the  questi(m,  therefore,  in  the  form  put,  was  improper. 
We  are  of  opinion  the  rule,  as  laid  down  by  the  court,  is 
rather  stringent.  Great  latitude  should  always  be  allowed  in 
cross-examination,  especially  in  a  capital  case,  and  the  court 
should  never  int(>rpose,  except  Avhoi-e  there  is  a  manifest  abuse 
of  the  right.  The  right  of  cross-examination  is  justly  esteemed 
one  of  the  most  etlicient  means  of  eliciting  the  truth,  and 
of  exposing  fabrication  and  falsehood.  AVe  think,  where  a 
witness,  on  a  second  examination,  as  to  a  particular  trans- 
action, states  an  important  fact  omitted  in  his  previous  account 
of  the  mattei',  his  attention,  on  cross-examination,  may  pr^>p- 
(irly  be  called  to  the  fact,  and  ho  bo  required  to  explain  why 
the  omission  was  nuulo  in  his  first  statement.  If,  in  such  case, 
the  fact  in  (piestion  was  forgotten,  or  omitted  through  inad- 
vertence, and  the  attention  of  the  witness  was  not  directed  to 
it,  as  it  often  happens,  the  witness,  of  course,  would  so  state, 
and  that  woidd  end  the  matter.  But  if  the  discrepancy  was 
intentiojuil,  the  cross-examination,  as  a  general  rule,  would  de- 
velop the  fact,  and  in  such  case  it  would,  and  properly  should. 


410 


AltfERICAN  CRIMINAL  REPORTS. 


affect  the  witness'  credit  before  tlie  jury.  While  we  tliink,  us 
Jih'cady  indicated,  the  riilin<i;  of  the  court  ou  tiiis  subject  was 
not  sullieiently  liberal,  yet  we  are  fully  satislied,  under  the 
facts  in  this  case,  the  error  in  question  could  not  have  ad'ectod 
the  result,  and  it  therefore  affords  no  ground  foi'  I'evei'sal. 

One  or  two  other  objections  of  a  similar  character  are  made 
by  plaintiff  in  error,  which,  for  the  reason  just  stated,  must  be 
dis[)osed  of  in  the  same  way. 

Numerous    exceptions    have  been  taken,   and  elaboriilcb,- 

argued,  to  the  instructicms  of  the  court,  most  of  which  we  re 

gard  as  highly  technical,  and  affording  no  reason  for  a  I'evci'siil 

or  even  just  criticism.   It  has  often  been  said,  and  we  re|)('iit  here. 

that  to  roiiuire  absolute,  litei-al,  technical  accuracy  in  insti'iic 

tioi!s,  would,  as  a  general  rule,  defeat  the  cuds  of  justice;,  iiiid 

biing  the  administiation  of  the  crimial  law  into  dis.'('|)ul('  mid 

just  conti'mpt.     It  is  sullicicnt  when  the  instructions,  considci'cd 

as  a  whole,  subitanliiilly  ])resent  liie  law  of  tlu;  case  faii'ly  lo 

the  jury.     That,  we  thiidc,  has  beini  done  in  this  cas(\     The 

criminal  laws  of  this  state  must  be  enforced.     And  if  it  is  not 

already  undcvstood,  it  is  high  time  it  should  be,  that  where  a 

case  is  clearly  madc^  out  against  the  accused,  and  tliii  jury  iiavc 

so  found,  this  court  will  not  reverse  for  a  niei-e  tecIiMical  (M'ror, 

which  it  can  s(>e  could  not  have  affected  the  result. 

The  judgment  will  be  alllrmed. 

Jadijment  ajjinncd. 


Statk  v.  BiJ//i:r,r.. 

(69  N.  II.,  05.) 

MURDEU :  Principal  avd  acccsfiori/  —  I'hndmcc  —  Iiistriiclinns  —  A  iiUrfois 
acquit  —  Merger  —  lyesence  of  drfemimtt —  Verdict. 

1.  MuRnru  —  rKixcn'AL  and  AfiM-.ssouv  — Kvidknci;.— U|»()n  <li(<  triiil  dl'  K. 

as  !U'<MVS(>ry  before  tlio  fact  to  tlie  iiuirder  of  II.,  cvidciu'c  wii.s  rcccivctl 
as  part  of  C.'s  tt  stiiiiony  toiuliiij^  lo  juovo  tlio  iillcKation  of  (lie  iiidkl- 
iiicnt  tliiil  (!.  nmrdcrctl  IT.,  and  for  no  other  inirpose;  lnhl.  llml  as  it- 
(;oini'(>teiu'y  for  tliat  jnirpose,  and  iln  incoiniu'leiicy  for  any  nllnr  imr- 
posc,  wore  dintinotly  (leclared  hy  tlie  <'ourt  wlien  it  was  received,  flien 
was  no  error. 

2.  Same  —  Instructions. —  A  jud^nK'nt  will  not  bo  reverHcd  bei  anse  of  (lie 

refusal  of  tho  court  to  repent  a  ruling  once  dl»{inclly  made  during  the 
progress  of  the  trial. 


STATE  V.  BUZZELL. 


411 


.■5.  Same— Autrefois  acquit— Merger.— If  the  defendant  was  in  fact 
both  a  principal  and  an  accessory,  and  if,  in  law,  on  the  plea  of  former 
conviction,  ho  could  not  be  convicted  of  either  crime  after  ho  had  been 
convicted  of  the  other,  he  could,  on  the  i)lea  of  not  guilty,  bo  convicted 
of  either  whore  he  had  been  previously  convicted  of  neither. 

•I.  Presence  of  DEi'ExnAXT  ix  a  caimtal  case. — When  the  defendant  de- 
clineil  an  invitation  to  tie  jn-esent  at  a  view  taken  by  the  Jury  in  a  capital 
ca.se  the  judfjjment  should  not  be  reverseil  on  that  grouiul. 

■).  Verdict  not  KiNoixd  the  DE.iui'.E  ok  the  oeeense.— Uiidi-r  a  statute 
which  makes  the  bill  of  exceptions  part  of  the  record,  and  it  appeal's 
that  the  <'har;;e  was  nmrder  in  the  first  degree;  that  tlie  evidence  was 
of  that  degnv!  and  no  other;  and  that  no  (piestion  was  raised  as  to  the 
degree,  a  gi  neral  verdict  of  murder  will  be  suliicieutly  certain  as  to  the 
degree. 

Copclant?  iuul  E<1(jc)'hj,  attorneys  for  the  dcfendaut. 
The  Attorn:  if-ilencnd.,  for  the  stato. 

niNouAM,  J.  I.  The  cvidoiico  tondini:;'  to  show  that  the  de- 
i'ciHliUit  was  |»ic.sont  at  the  inurdor,  aiding'  and  iibettiiiii,"  C,  was 
ollVred  and  received,  not  for  the  j)ni'})ose  of  showing  tliat  the 
•lerendiint  was  present  as  a  |)i'incii)al,  nor  for  the  pin-pose  of 
inlerrino'  from  liis  pr(\scni:0  that  he  liad  been  an  accessory,  but 
as  a  pitrt  of  C^."s  testimony,  tendin;^-  to  [)rove  the  allegation  of 
the  indictment  that  ('.  mui'<hM'c(l  II.  It  was  as  necessary  for  tlie 
state  to  prove  that  (-.  committed  the  miu'der  as  to  prove  that 
the  delemhint  liad  previously  incited  liini  to  commit  it;  and 
there  was  no  error  of  law  hi  the  acbnissionof  the  whole  of  the 
narrative  of  the  transiietion  given  by  C.  It  was  for  the  jury  to 
say  what  part  of  his  testimony,  if  any,  was  true,  and  what  part, 
if  any,  was  false.  AV^hile  they  might  well  believe  that  C.  com- 
mitted the  murder,  and  that  the  defendant  had  ])reviously  liired 
him  to  commit  it,  they  luight  well  doubt,  upon  all  the  evidence, 
whether  the  defendant  was  ])resent  when  C.  lired  the  gun.  The 
evidence  to  wliich  the  defendant  objected  was  competent  for  the 
special  purpose  for  whidi  it  was  oll'ered.  Its  competency  for 
that  purpose,  and  its  incompetency  for  any  other  ])urpose,  were 
distinctly  declared  by  the  coiu't  when  it  was  received.  IVo  other 
use  was  made  of  it  than  as  it  boi'e  upon  the  (piesiion  of  C.'s 
guilt.  The  law  being  once  declared  by  the  court,  the  defend- 
ant had  no  more  right  to  reipiire  it  to  be  repeated  once  than 
to  recpiire  it  to  be  rei»eate<l  twice,  or  ten  tinu's.  AV^hether  the 
statement  of  law,  once  distinctly  made  and  acted  upon  by 


412 


AMERICAN  CRIMINAL  REPORTS. 


■I 


counsel  throughout  the  trial,  should  have  been  repeated,  and 
how  many  times,  is  not  a  question  of  law.  If  tlie  statement 
was  correct,  it  might  be  repeated ;  but  the  judgment  cannot  bo 
reversed  because  it  was  not  repeated, —  es[)ecially  when  no 
other  use  was  made  of  the  evidence  than  the  legal  one  an- 
nounced bv  the  state's  counsel  and  by  the  court.  The  refiisiil 
to  repeat  the  law  once  hiid  down  was  not  error  in  law. 

Whether  evidence  that  the  defendant  was  jiresent,  aidiM«i' 
and  abetting  C.  in  the  murder,  might  tend  to  i)rove  that  al 
a  j)revious  time  and  in  another  place  he  instigated  C.  to  com- 
mit the  crime,  is  a  question  there  is  now  no  occasion  to  con- 
sider. It  might  be  improbable  that  the  instigation  began  at 
the  time  and  place  of  the  murder,  and  that  they  met  there 
accidentally,  or  on  other  business. 

II.  The  del'e!i(lant  pleaded  the  general  issue,  and  not  his 
former  acquittal  of  being  a  principal,  because  the  latter  ])lea 
would  have  been  bad  on  demurrer.  Sftife  v.  Buz:idl,  58  N.  II.. 
ii.")?.  On  the  iornier  indictment,  charging  him  as  |)riucipal.  he 
could  not  be  convicted  or  ac(piitted  as  accessory.  On  this  indict- 
ment, charging  him  as  accessory,  he  could  not  bo  convicted  of 
ac(piitted  as  princi|)al.  He  now  contends,  not  that  his  ac(piil- 
tal  is  a  defense,  but  tiiat  if  he  was  guilty  of  the  crime  of  wliicii 
he  was  ac(|uitted,  he  could  not  be  guilty  of  the  ci'ime  of  which 
he  was  convicted.  It  is  not  apparent  how  he  could  be  entitled 
to  the  instruction  recjuested  on  this  ])oint,  when  his  oitjectioii 
to  tiie  evidence  of  his  being  a  princi[)al  had  been  acci>|»te(l  l»y 
the  state,  sustained  by  the  court,  and  acted  upon  by  iMith 
parties,  and  the  whole  trial  had  proceeded,  as  he  desired  and 
])roposed  it  should,  on  the  ground  that  tlieciuestion  of  hisbciii;/ 
a  ])rinci[ial  was  excluded  from  the  considei'ation  of  the  jurv. 
Under  the  resti'ictions  asked  by  him,  adopted  by  tln^  state,  and 
conlinned  by  tiie  court,  there  was  in  the  case  no  evidence  to 
which  such  instruction  couhl  be  applied. 

If  one  who  is  a  principal  cannot  bo  convicted  as  accessory 
l)efore  the  fact  in  tiie  same  felony,  the  reason  must  be  that  tiic 
crime  of  being  accessory  merges  in  the  crime  of  being  princi- 
pal, and  the  t-wo  crinuis  become  one,  as  C's  crime  of  assaidt 
with  intent  to  kill  merged  in  his  crime  of  murder,  for  the  pur- 
pose of  ])reventing  the  j)unishment  of  both.  Had  the  defend- 
ant been  convicted  as  a  principal  on  the  former  indictinent. 


STATE  V.  BUZZELL, 


the  judgment  would  have  been  conchisive  evidence  for  the 
state,  and  against  him,  in  any  other  case  between  the  same 
parties,  that  he  waa  a  principal.  Com.  r.  M^PUcc,  3  Cush., 
181;  Com.  v.  Austin,  97  Mass.,  51)5,  507;  Com.  v.  J'Amnn,  101 
Mass.,  25;  State  v.  Lang,  G3  Me.,  215,  220;  Reg.  v.  BlaJcemore, 
•1  Den.  Cr.  C,  410;  Queen  v.  Ilanghton,  1  El.  &  Bl,,  501.  If, 
on  tliis  indictment,  the  judgment  of  accpiittal  on  the  former 
indictment  is  conclusive  evidence  for  him,  and  against  the 
state,  that  ho  was  not  a  principal,  and  if  it  is  evidence  for  the 
state  as  well  as  for  him,— if  the  estoppel  is  mutual, —  the  fact 
is  incontrovertibly  established,  in  this  case,  that  he  was  not  a 
principal;  and  it  is  a  point  adjudicated  between  these  parties 
tiiat  there  was  no  crime  of  his  in  which  liis  crime  of  being 
iiccossorv  could  merge ;  that  merger  was  impossil  »le  because  he 
was  not  a  ])i'incipal.  Tlie  question  could  have  been  raised  by 
a  ploa  of  his  guilt  as  a  principal,  a  replication  of  his  acquittal, 
and  a  denuirrer  to  the  replication.  As  such  a  plea  Avould  be 
had,  it  is  not  necessary  to  consider  whether  such  a  rc[)lication 
would  ])(>  good.  On  tliis  indictment  f<n"  being  accessory,  the 
(lof(Midant  would  neither  ])lead  nor  prove  that  he  was  not  guilty 
of  tlui  crime  charged,  by  pleading  and  proving  tliat  he  was 
guilty  of  the  other  o'ime  of  Ijeing  a  principal. 

If  the  acquittal  dot's  not  render  a  merger  impossible,  and  if 
the  crimes  of  principal  and  ac(;cssory  so  merge  that  a  convic- 
tion of  either  is  a  bai*  to  an  indictment  for  the  other  (a  point  on 
which  we  expi'ess  no  opinion),  such  a  merger  is  no  defense  in 
this  case.  One  may  be  convicted  of  cither  of  two  felonies 
which  liave  so  mergcnl  that  if  tlie  proper  j)1ea  Avere  interposed 
iio  could  not  be  convicted  of  both.  If  the  defendant  was,  in 
fact,  both  a  ]irincipal  and  an  accessory,  and  if,  in  law,  on  the 
plea  of  former  conviction,  he  could  not  be  convicted  of  either 
crime  after  ho  had  been  convicted  of  the  other,  he  could,  on 
the  plea  of  not  guilty,  l>o  convicted  of  either  when  lie  had 
heen  previously  convicted  of  neither.  State  v.  Archer,  54  N.  II., 
4(1.-),  408;  Stffte  v.  Sni/Jer,  50  K  II.,  150,  155,  159;  State  v. 
Emerson,  53  X.  II.,  «U9;  State  v.  Zeai'/'tt,  32  Mc,  183;  State  v. 
Smith,  43  Yt.,  324;  Com.  v.  Squire,  1  Met.,  258,  204,205;  Com. 
V.  J/'/V/v>,  3  Cush.,  ISl,  185;  Com.  v.  BurJce,U  Gray,  100; 
Com.  V.  Baheman,  105  Mass.,  53,  01 ;  Com.  v.  Bean,  109  Mass., 
'iVd,  351,  352;  State  v.  She^urd,  7  Couu.,  54;  State  v.  Parmelee, 


414: 


AMERICAN  CRIMINAL  REPORTS. 


9  Conn,,  259 ;  People  v.  Smith,  57  Barb.,  40 ;  Bamett  v.  People, 
nt  lU.,  3-^5,  3.30,  ,331;  Peg.  v.  JSTeale,  1  C.  &  K.,  .501;  8.  6'.,  1 
Den.  Cr.  C,  30;  Peg.  v.  Button,  11  A.  &  E.  (N.  S.),  929,  047, 
948;  I>ank  rrosecutions,  liuss.  it  Ry.,  378;  3  Inst.,  130;  2 
Hawk.  r.  C,  ch.  29,  sec.  1;  1  Iluss.  CiC,  31;  1  Eisli.  Cr.  L.,  sec. 
COS;  Lewis,  Cr.  L.,  .')99;  Bick.  Cr.  Pr.,  15. 

If  he  wei'o  accused  of  connnitting  the  crimes  of  arson  and 
murder  by  tlie  single  act  of  ilring'  a  liouse,  tliore  would  be  a  ques- 
tion on  a  ])lca  of  former  conviction  wlictlier  lie  could  be  tried 
for  either  crime  after  he  had  been  convicted  of  the  other.  A'/r/^ 
■y.  Cooper,  1  (Jreen  (N".  J.),  301.  If  he  were  acquitted  of  either 
on  the  ground  that  iu!  did  not  set  the  fire  and  was  not  present 
■when  it  was  set,  and  then,  being  indicted  for  the  other,  pleaded 
the  judijmeut  of  acquittal,  and  proved  his  necessary  averment 
of  the  identity  of  the  alleged  act  (1  Cr.  Ev.,  sec.  532;  3  Gr.  Ev.. 
sec.  30;  Morgan  c.  Burr,  58  X.  11.,  470),  there  would  be  a  ques- 
tion whetlun'  he  could  be  twice  put  in  jeopardy  for  the  single 
alleged  act.  lie  would  contend  that  for  all  the  purposes  of  the 
criminal  law  between  the  same  parties  such  a  judgment  was  con- 
clusive, and  that  the  fact  of  his  not  being  a  principal  in  (iring 
the  house  was  established  by  such  a  judgment  acquitting  him  of 
either  crime,  and  was  an  indisputable  fact  ow  an  indictment  for 
the  other.  If  he  was  not  such  a  principal  in  one  case,  he  could 
not  be  in  the  other.  But  if  he  were  accpiitted  of  the  murder  on 
the  ground  that  the  person  alleged  to  have  been  murdered  was 
not  killed  by  the  lire,  or  was  wrongly  named  in  the  indictment 
{State  V.  MkUnj,  14  N.  II..  304,  300;  ^ Com.  v.  Cliesleg,  107  Mass., 
223;  1  Bennett  ct  IF.  Cr.  Cas.,  2d  cd.,  53.5),  the  acciuittal  would 
not  sustain  his  plea  of  not  guilty  to  a  subsequent  indictment 
for  the  arson.  If,  not  having  been  convicted  of  the  murder, 
he  were  indicted  for  the  arson,  and  pleaded  that  the  act 
ciiarged  was  murder  as  well  as  arson,  his  ph^a  would  be  had 
on  dcMuurrei',  and  if,  not  having  been  convicted  of  tiie  ai-son, 
he  were  indicted  for  the  murder,  and  pleaded  that  tlie  act 
charged  was  ars;)n  as  well  as  murder,  his  plea  woidd  be  bad  on 
demurrer.  I'here  would  be  no  such  merger  as  v.'ould  prevcMit 
his  l)eing  convicted  of  either  of  the  crinu's  committed  by  the 
single  act.  At  the  ti-ial  of  this  case,  on  the  plea  of  not  guilty 
of  an  act  of  an  accessory  committed  at  one  time  and  place, 
proof  of  another  act,  committed  by  the  defendant  as  a  princi- 


WILLIAMS  V.  THE  STATE. 


415 


pal,  at  a  subsequent  time  and  at  a  different  place,  AVould  not 
maintain  his  plea. 

III.  "VVlictliGv  a  verdict  of  guilty  of  murder,  not  in  terms 
tinding  the  degree,  is  insudicient  when  the  record  shows  the 
degree  found  by  the  jury,  is  a  question  not  raised  in  this  case. 
Section  2  of  ch.  204  of  the  (Sreneral  Statutes  is  applicable  only 
to  a  case  in  which  the  defendant  is  found  guilty  of  murder. 
But  if  the  record  did  not  show  that  the  jury  found  C.  guilty  of 
murder  in  the  first  degree,  it  might  be  argued  that  the  judg- 
ment against  the  accessory  could  not  bo  capital.  It  appears  by 
the  bill  of  exceptions,  which  is  a  part  of  the  record  (Gen,  St., 
ch.  189,  sec.  !)),  that  the  cliarge  was  that  C.'s  crime  was  murder 
[n  the  first  degree;  tliat  the  evidence  was  of  that  degree  and 
no  other;  and  that  no  (pu>stion  was  raised  as  to  the  degree.  It 
appears,  therefore,  with  certainty,  by  the  record,  that  the  ver- 
dict of  the  defendant's  guilt  included  the  finding  of  C.'s  guilt 
of  the  first  degree. 

IV.  The  defendant's  non-accejjtancc  of  the  invitation  to  ac- 
company the  juiy  a  portion  of  the  time  on  the  view  is  no 

ground  for  reversing  the  judgment. 

Excejytions  overruled. 

Foster,  Stanley  and  Clark,  JJ.,  did  not  sit;  the  others  con- 
curred. 


Wrr.MAMs  V.  The  State. 


(60  Md.,  403.) 
Murder  :  Polling  jury  —  Void  verdict. 

Whore  the  jury  is  polU^il  in  a  murder  ease,  it  is  the  duty  of  each  juror  to 
say  for  liiiiiself  whether  he  finds  the  prisoner  guilty  of  iimrdcr  in  the 
first  or  second  der/rce. 

Each  juror  must  desionatf,  DEauKE.-—  Where  the  respcmse  of  each  juror 
in  such  ease  is  simply  "guilty,"  without  a  de)ii;;iiation  of  the  degree  of 
guilt,  such  verdict  is  a  luiUity.  And  the  fact  that  the  clerk,  immediately 
after  polling  the  jmy,  called  upon  them  to  hearken  to  the  verdict  as  the 
court  had  recorded  it —  "  your  foreman  saith  that  J.  W.,  the  prisoner  at 
the  bar,  is  guilty  of  murder  in  the  first  degree,  and  so  say  you  all"  — 
(lous  not  ailtict  the  question. 


416 


AMERICAN  CRIMINAL  REPORTS. 


Appeal  as  upon  Writ  of  Error  from  the  Circuit  Court  for 
Howard  County.  • 

Wm.  A.  Hammond  and  Henry  E.  Wootton,  for  the  plaintill' 
in  error. 

Charles  J.  21.  Gwinn,  attorney-general,  for  tlie  defendant  in 
error.  * 

RoniNsox,  J.,  delivered  the  opinion  of  the  court. 

The  i)la'mt[f  in  error  was  tried  in  the  circuit  court  foi- 
Howard  county  on  an  indictiiuMit  for  murder;  and  the  jury, 
when  tliey  came  to  the  bar  to  (h^liver  their  verdict,  declared  l)y 
their  foreman  that  he  was  guilty  of  murder  in  f/tejird  degree. 
IJefore  the  verdict  was  recorded,  the  plaintiff  in  error  de- 
manded a  poll  of  the  jury;  and  each  juror,  when  called  upon 
to  answer  for  himself  and  in  his  own  language,  responded 
"•  guilty,''  without  specifying  the  degree  of  murder.  Xow. 
murder  in  the  iirst  degree  is  ))unishable  by  death,  and  murder 
in  the  second  degree  by  continement  in  the  penitentiary.  The 
code,  therefore,  provides  that  on  an  indictment  for  murder  the 
jury  shall,  if  they  lind  the  ])ei'son  "  guilty,"  ascertain  in  their 
verdict  ivhether  It  he  murder  In  the  first  or  second  degree.  \ 
general  verdict  of  "  guilty  "  on  an  indictment  for  mui'der  is  ii 
f/ad  verdict,  i\nd  on  such  a  verdict  no  judgment  can  be  pro- 
nounced.    Ford  V.  Thi'  State,  \2  Md.,  511. 

The  prisoner  wns  entitled,  as  a  matter  of  right,  to  a  poll  ol' 
the  jury,  and  he  could  not  be  convicted  exc(>])t  upon  the  con- 
currence of  each  juror.  Upon  the  poll,  it  was  the  duty  of 
each  juror  to  say  for  himself  wh(!th(ir  he  found  the  prisonei' 
guilty  of  murder  in  the  first  or  second  degree.  AVe  all  know 
that  jurors  sometimes,  upon  the  poll,  dissent  from  the  verdict 
declared  for  them  by  their  foreman,  and  it  is  for  the  jjui-posc 
of  compelling  each  juror  to  declare  his  own  verdict,  in  his  own 
language,  that  a  j)oll  of  the  panel  is  allowed.  Upon  the  \M)\\ 
in  this  case,  there  was  not  a  single  juror,  who,  in  finding  the 
prisoner  guilty,  ascertained  the  degree  of  murder  as  requirful 
by  the  code.  On  the  contrary,  the  verdict  was  "guilty,"  and 
such  a  verdict  is,  as  we  have  said,  on  an  indictment  for  murder. 
a  nullity. 

The  fact  that  the  clerk,  immediately  after  polling  the  jury, 
called  upon  them  to  hearken  to  the  verdict,  as  the  court  had 


HOPT  r.  UTAH. 


417 


recorded  it — "Your  foreman  saith  that  Jason  Williams,  the 
prisoner  jvt  the  bar,  is  guilty  of  murder  in  the  first  degree,  and 
so  say  you  all," — does  not  affect  the  question.  It  was  to  this 
verdict  as  delivered  by  the  foreman,  and  to  which  the  assent  of 
each  juror  was  to  l)e  inferred  from  his  silence,  that  the  plaintiiT 
had  objected,  and  to  test  which  ho  had  demanded  the  panel 
should  be  polled.  And  when  polled  not  a  single  juror  declared 
the  prisoner  guilty  of  murder  in  the  first  degree. 

AVe  do  not  see  how  this  case  differs  in  principle  from  ForcTn 
Case,  12  ]\rd.,  .'iU.  TTjnm  the  poll  in  that  case,  the  foreman 
answered,  ''(Juilty  of  murder  in  the  first  degree,"  and  each  of 
the  remaining  jurors  responded  "guilty,"  without  specifying 
the  degree  of  murder.  And  the  court  held  tliis  to  be  a  bad 
verdict,  and  bad,  too,  because  each  juror  did  not,  in  answer  to 
the  poll,  specify  the  degree  of  murder. 

In  this  case,  as  in  that,  the  verdict  rendered  on  the  poll  is  a 
defective  verdict,  and  we  must  I'overse  the  judgment  and  award 
a  new  trial. 

Judgment  reversed,  and  new  trial  awarded. 


IIoPT  v.  Utah. 


(110  U.  S.,  .574.) 

MuuDEU:   Triers  —  Evidence  —  Covfei^sion —  Witnesses  — Statute  in  refer- 

ciiee  to. 

1.  MniDKR  —  DEfiREE  OF,  TO  BE  roiND  BY  THE  .itTiY. —  Under  a  statute 

which  (U'lines  the  crime  of  umnhr  and  lixes  the  degrees  tliereof,  it  is 
error  for  the  <"ourt  to  say,  in  its  cliarf^e  to  the  jury,  that  the  offense,  by 
wlionis(R'ver  eonunitted,  was  that  of  murder  in  the  first  depree. 

2.  Trieiis  —  Presence  of  AtcrsED  before. —  Under  a  statute  wliieh  pro- 

vides that,  '•  if  the  indictment  is  for  felony,  the  defendant  must  l)e  per- 
sonally ])n'sent  at  the  trial,"  the  presence  of  the  defendant  cannot  be 
disjR'nsed  with  before  triers  appointed  l)y  tlie  court  for  the  triid  of  the 
snfflci(Miry  of  a  cause  of  challenge  to  a  juror. 

3.  Evidence,  hearsay. —  On  the  (luestion  as  to  the  identification  of  the 

body  of  the  j)erH«)n  alleged  to  lune  been  nnirdered,  it  is  not  competent 
to  show  by  the  .surgeon  who  made  the  2v>st-inortem  examination  of  tlic 
body  of  a  corpse  claimed  by  the  ]>rosecu(ion  to  be  that  of  the  murdered 
person,  that  the  body  was  identified  to  liim  by  another. 
Vol.  IV -27 


AMERICAN  CRIMINAL  REPORTS. 


Confession  of  acccsed,  when  admissible  against  him. —  The  .idmis- 
sibility  of  a  confession  of  Ruilt  is  addressed,  in  the  first  instance,  to  the 
discretion  of  the  court.  It  must  be  subjected  to  careful  scnitinj%  and 
received  with  great  caution.  "When  freely  and  voluntarily  made,  it  is 
evidence  of  the  most  satisfactory  character,  but  the  presumption  upon 
which  weight  is  given  to  such  evidence,  namely,  that  one  who  is  imio- 
cent  will  not  imperil  his  safety  or  j  rejudice  his  interests  by  an  untrue 
statement,  ceases  when  the  confession  appears  to  have  been  made  either 
in  consequence  of  inducements  held  cut  by  one  in  authority  (ouchin;!; 
the  charge  preferred,  or  because  of  a  threat  or  promise  by  or  in  the 
presence  of  such  person,  with  reference  thereto. 

■Witnesses  — Statute  wnir  ii  removes  common  law  pisabimty  of,  not 
EX  POST  facto. —  Statutory  alterations  which  do  not  increase  the  pun- 
ishment, nor  change  the  ingredients  of  the  offense  or  the  ultimate  facts 
necessai-y  to  establish  guilt,  and  which  only  remove  existing  restrictions 
upon  the  competencj-  of  certain  classes  of  persons  as  witnesses,  relate 
to  modes  of  procedure  only,  in  v>hich  no  one  can  be  said  to  have  a  vested 
right,  and  which  the  state,  upon  grounds  of  public  policy,  may  regulate 
at  pleasure. 

Error  to  the  Supremo  Court  of  the  Territory  of  Utuli. 


Thomas  J/an/uiIl  and  Zee  J.  S/iarj),  for  i)laiiifin"  in  error. 
2faurij,  assistant  attorney -general,  for  defendant  in  error. 


]\rr.  Justice  IIaklan  delivered  the  opinion  of  the  court. 

AVe  are  now  required  to  determine  whether  the  court  of 
orioinal  jurisdiction,  in  its  conduct  of  the  last  trial,  comniilted 
any  error  to  tlie  prejudice  of  the  substantial  rights  of  the  de- 
fendant. 

I.  The  validity  of  the  judgment  is  questioned  upon  the 
ground  that  a  part  of  the  ])roeeedings  in  the  trial  court  were 
conducted  in  tlie  absence  of  the  defendant. 

The  Crimiiud  Code  of  Proccdui'c  of  Utah,  section  21 S.  pro- 
vides that,  "  If  the  indictment  is  for  a  felony,  the  defendant 
must  be  personally  present  at  the  trial;  but  if  for  a  misde- 
meanor, the  trial  may  bo  had  in  the  absence  of  the  defendant; 
if,  however,  his  presence  is  necessary  for  the  purpose  of  identi- 
iication,  the  court  nuiy,  upon  application  of  the  ])rosc('nting 
attorney,  by  an  order  or  warrant,  require  the  pcr,sonal  attend- 
ance of  the  defendant  at  the  trial." 

The  same  code  provides  that  a  juror  may  be  challenged  by 
either  party  for  actual  bias,  that  is,  "for  the  existence  of  n 
state  of  mind  which  leads  to  a  just  inference  in  reference  to 


IIOPT  V.  UTAH. 


419 


llie  case  tluit  lie  will  not  act  with  ontire  impartiality  "  (sections 
239,  241);  such  a  challenge,  if  tho  facts  he  denied,  must  bo 
ti'ied  by  tliree  impartial  triors,  not  on  the  jury  panel,  and  ap- 
pointed by  the  court  (section  24^(>);  the  juror  so  challenged 
'•  may  bo  examined  as  a  witness  to  ])rovc  or  disprove  the  chal- 
lenge, and  must  answer  every  question  pei'tinent  to  the  in- 
(juir}' "  (section  249);  "  other  witnesses  may  also  be  exa.niined 
on  cither  side,  and  the  rules  of  evidence  applicable  to  tlio  trial 
of  other  issues  govern  the  admission  or  exclusion  of  evidence 
on  the  trial  of  the  challenge"  (section  S.'O);  "on  the  trial  of 
the  challenge  for  actual  bias,  when  tho  evidence  is  concluded, 
the  court  must  instruct  the  triers  that  it  is  their  duty  to  find  the 
cliallenge  time,  if  in  their  opinion  the  evidence  wan-ants  tho 
conclusion  that  the  juror  has  such  a  bias  against  the  party 
challenging  him,  as  to  render  him  not  impartial,  and  that  if 
from  tho  evidence  they  believe  him  IVee  from  sucli  bias,  tliey 
must  find  the  cluiUenge  not  true;  that  a  hy[)othetical  oj)inion 
on  hearsay  or  information  supjiosed  to  be  true  is  of  itself  no 
evidence  of  bias  suHicient  to  disijualify  a  juror.  Tlie  court 
can  give  no  other  instruction"  (seciion  2.") 2);  "tho  triers  must 
thereui)on  find  tho  challenge  either  true  or  not  true,  and  their 
(leciriion  is  final.  If  they  find  it  true  the  juror  must  bo  ex- 
cluded" (section  2r.n). 

It  a])pears  that  six  jurors  were  sejiarately  challenged  by  the 
defendant  for  actual  bias.  The  grounds  of  challenge  in  each 
case  wero  denied  by  the  district  attorney.  For  each  juror 
triers  were  appointed,  who.  being  duly  sworn,  were,  "  before 
proceeding  to  try  the  challenge,"  instructed  as  recpiired  by 
seclicm  252  of  tho  Criminal  ("ode;  after  which,  in  each  case, 
the  triers  took  the  jui'or  from  the  court  room  into  a  difFei'cnt 
room  and  tried  tho  grounds  of  challenge  out  of  the  presence 
as  well  of  tho  court  as  of  the  defendant  and  his  counsel.  Their 
findings  wore  rotui-ned  into  court,  and  tho  challenge,  being 
found  not  true,  tlie  jurors  so  clinllengod  resumed  their  seats 
among  those  summoned  to  try  the  case. 

Of  the  six  challeng(nl  for  actual  bias,  four  Avere  subsequently 
challenged  by  tho  <lefendant  peremptorily.  The  other  two 
wei'o  swoi'ii  as  trial  jurors,  one  of  them,  however,  after  the 
defendant  had  exhausted  all  his  peremptory  challenges. 

1^0  objectiou  was  made  to  tho  triers  leaving  tho  court  room, 


420 


AMERICAN  CRIMINAL  REPORTS. 


nor  was  any  exception  taken  thereto  during  tlie  trial.  Tlio 
jurors  ])ro})ose(l  were  examined  by  tlic  trioi's  without  any  tes- 
timony l)eing  offered  or  produced,  either  by  the  prosecution  or 
the  (Uil'ense. 

It  is  insisted,  in  l)ehalf  of  the  defendant,  that  tlie  action  of 
tlie  court  in  permittinf>"  the  trial,  in  his  absence,  of  those  clial- 
Icui^es  of  jurors  was  so  iri'e<;ular  as  to  vitiate  all  t!>e  subso- 
([uent  proceedings.     This  point  is  well  taken. 

The  Criminal  (.'ode  of  Utah  does  not  authorize  the  trial  by 
triers  of  grounds  of  challenge  to  bo  had  apart  fi'om  the  court, 
and  in  the  absence  of  tlu;  defendant.  The  specific  |)rovision 
made  for  the  examination  of  witnesses  "on  either  si<le,"' sul)- 
ject  to  the  rules  of  evidence  applicable  to  the  trial  of  other 
issues,  shows  that  the  prosecniting  attorney  and  the  defendant 
were  entitled  of  right  to  l)e  present  during  the  examinaticm  by 
the  triers.  It  certainly  was  not  contem])lated  that  witnesses 
should  1)0  sent  or  brought  before  the  triei's  without  the  party 
producing  them  having  the  privilege,  under  the  su])ei'vision  of 
the  court,  of  ])ropounding  sucli  (juostions  as  would  elicit  the 
necessary  facts,  or  without  sin  o])poi'tunity  to  the  opposite  side 
for  cross-examination.  These  views  lind  some  sui)poi't  in  the 
further  provision  making  it  the  (hity  of  the  court,  "  wh(>n  the 
evidence  is  concluded,"  and  before  the  triois  nud\(>  a  linding, 
to  instruct  them  as  to  their  duties.  In  the  case  boiore  us  tlio 
instructions  to  the  triers  were;  given  before  the  latter  proceeded 
Avith  the  trial  of  tlie  challenges. 

l?ut  all  doubt  up<m  the  subject  is  removed  by  the  express  re- 
quirement, not  that  the  defendant  may,  but,  where  tlu^  indict- 
ment is  for  a  felony,  must  bo  "•  juM'sonally  |)rosont  at  the  ti'ial.'' 
The  argunuMit  in  behalf  of  the  govi'rnment  is  that  the  trial  of 
the  inilictment  began  after  and  not  bofoi'o  the  jury  was  sworn; 
conse(|uently.  that  the  defendant's  personal  ])resonce  was  not 
re(|uirod  at  an  earlier  stage  of  the  proceedings.  Scnne  warrant, 
it  is  suj)pos(>d  l>y  counsel,  is  found  foi*  this  position,  in  decisions 
coustruing  particular  statutes  in  which  the  woi'd  "trial"  is 
used.  Without  stop])ing  to  distinguish  thoscM^ases  from  the 
one  before  us.  oi'  to  examine  llioi  grounds  upon  which  they  are 
placed,  it  is  suHiciont  to  say  lliat  the  pui'posi?  of  tla^  foregoing 
])rovisions  of  the  Utah  Criminal  ("ode  is,  in  prosecutions  for 
felonies,  to  prevent  any  steps  being  taken,  in  the  absence  of 


IIOPT  r.  UTAH. 


421 


I 


the  accused  and  after  tliocasc  is  called  for  trial,  which  involves 
Ills  substantial  ri«>lits.  The  i'(>(]uii'enient  is,  not  that  he  must  ho 
j)ers()nall\'  j)reseiit  at  the  trial  by  the  jurv,  but  "at  the  trial." 
The  code,  we  have  seen,  prescribes  /^rounds  for  challenjie  by 
either  party  of  jui'ors  proposed.  And  |)rovision  is  ex))i'essly 
made  for  the  "  ti'ial  "  of  such  challen,i>es,  some  by  the  court, 
others  l)y  trici's.  The  prisoner  is  entitled  to  an  impartial  jury 
ccunposed  of  persons  not  discpialilied  l)v  statute,  and  his  life  or 
liberty  may  depend  upon  the  aid  which,  by  his  personal  prcs- 
eiu'e,  he  may  j^ivcsto  counsel  and  to  the  court  and  trici-s,  in  the 
selection  of  jurors.  The  lu'cessities  of  the  defense  may  not  bo 
nu't  by  the  ))resence  of  his  eounsel  only.  For  every  ])ur))ose, 
therefore,  involved  in  the  i-etpiirement  that  the  defeiulant  shall 
be  ])('isonally  ])resent  at  the  trial,  where  the  indictment  is  for 
felony,  the  trial  commences  at  least  from  the  tinu^  when  the 
work  of  impanelin<>'  the  jury  beg-ins. 

Hut  it  is  said  that  the  riyht  of  the  accused  to  be  ]>resent 
before;  the  triers  was  waived  by  his  failure  to  object  to  their 
retirement  from  the  court  room,  or  to  their  trial  of  the  several 
challeng-es  in  his  absence. 

"We  are  of  opinion  that  it  was  not  within  the  jiower  of  the 
accused  or  his  eounsel  to  dis])ense  with  the  statutory  reipiirc- 
nuMit  as  to  his  persoiud  presence  at  the  trial.  The  argument 
to  the  contrary  lUH'ossarily  proceeds  u|)on  the  <iTound  that  ho 
alone  is  concerned  as  to  the  mode  by  which  he  nuiy  b(>  de- 
prived of  his  life  or  liberty,  and  that  the  chief  object  of  the 
])rosecution  is  to  ])unish  him  for  the;  crinu'  cliarii'ed.  I'ut  this 
is  a  mistak(Mi  view  as  well  of  the  relations  which  the  accused 
holds  to  the  public  as  of  the  end  of  human  punislunent.  The 
iiatiu'al  life,  says  l)laclvstoiu\  "cannot  legally  be  (lis|)ose(l  of  or 
destroyed  by  any  individual,  lU'ither  by  Ihe  person  himself,  nor 
by  any  other  of  his  fellow  civatures,  nu>rely  upon  their  own 
authority."  1  151.  Com.,  l.').'').  The  public  has  an  intei'cst  in 
his  life  and  libei'ty.  >>either  can  be  lawfully  taken  except  in 
the  mode  prescribed  by  law.  That  which  the  law  makes  es- 
sential in  i)roceeding's  involving*  the  de])rivation  of  life  or  lib- 
erty cannot  be  dis|)ensed  with  or  aifected  by  the  consent  of  the 
accused,  much  less  by  his  mere  failure,  when  on  trial  and  in 
custody,  to  object  to  unauthorized  methods.  The  great  end  of 
punishment  is  not  the  expiation  or  atonement  of  the  oll'ense 


422 


AMERICAN  CULMINAL  REPORTS. 


ooininittcd.  but  the  ])revonti»)n  of  future  olTonsos  of  the  samo 
kind.  -I-  151.  Com.,  11.  Such  I)(>in<,f  the  rehition  which  the  citi- 
7/JU  holds  to  the  public,  and  the;  ((bjcct  of  punishment  for  pub- 
lic wrong's,  the  le«^-islatui'e  has  deenu^d  it  essential  to  the 
protection  of  one  whose  life  or  liberty  is  involved  in  a  prosecu- 
tion for  felony,  that  he  shall  bo  pci'soiudly  present  at  the  ti-ial, 
that  is,  at  evei'y  sta<^'e  of  the  trial  vv-Iumi  his  substantial  rights 
may  bo  ad'ected  by  the  ])roceedings  a<j;ainst  him.  Jf  he  be  de- 
])rived  of  his  life  or  liberty  without  biMii"^-  so  present,  such  dei)- 
I'ivation  would  bo  without  that  duo  process  of  law  reipiiied 
by  the  constitution. 

For  these  reasons  Avo  are  of  opinion  that  it  was  error,  which 
vitiated  the  verdict  and  judi;ni(^nt,  to  permit  the  trial  of  the 
challeng'es  to  take  place  in  tlu>  absence  of  the  accused. 

2.  Another  assignment  of  error  relati^s  to  the  action  of  tlit! 
court  in  jjci'mitting  the  surg(H)n  who  lind  made  a  jxisl-niiifli m, 
e.xainination  of  the  i)ody  of  a  corpse  whicli  was  claimed  by  the 
])ro:-;ecution  to  be  that  of  .lohn  V.  Turner,  to  state  that  one; 
F«)\vl(>r  identilled  tlu>  !)ody  to  him. 

The  surge(jn  testilied  that  the  l>ody  examined  by  him  v.m;;  on 
the  platform  at  tlu^  raili'oad  (h^pot  in  Salt  Lake  ("ity,  in  a 
wooden  case  and  coilin.  The  fe.tlier  of  the  deccMsed  t(>stilii>d 
that  he  did  not  communicate  p{>rsonally  with  the  surgeon,  noi' 
see  that  his  son's  bodv  was  delivered  to  him;  that  he  Ii"i  it  ; 
the  railroad  depot  in  Salt  hake  ("ity,  in  a  W(jo(len 
closed  in  a  box;  and  the  fact  that  the  body  of  the  dec  .  was 

originally  placed  in  such  a  colIin  was  ])roved  by  a  wi,  ;  wlm 
])ut  it  in  the  coilin.  And  yet  there  was  testimony  siiowiii^  (h; 
there  was  a  body  in  the  same  depot,  at  or  about  the  time  re- 
ferred to  by  the  surge, )n,  which,  having  been  i)laced  in  a  metal- 
lic case  covered  by  a  wooden  box,  liad  been  shipped  from 
EcIkj,  by  rail,  to  Salt  Lake  City;  also  that  it  showed  injuries 
"  generally  similar  "  to  th<we  described  by  the  surgeon.  AVere 
there  two  bodies  of  deceased  persons  at  the  samo  dei)ot,  about 
the  same  time,  one  ''in  a  wood  c<jllin  inclosed  in  a  box,"  and 
the  other  ''in  a  metallic  case  covered  by  a  Avooden  boxT' 
There  would  be  some  ground  to  so  contend  did  not  the  bill  of 
exceptions,  in  its  reference  to  the  body  shipped  from  Echo  in  a 
metallic  case,  imply  that  there  was  testimony  showing  it  to  be 
the  one  that  "  had  been  identilied  as  the  body  of  the  deceased, 


^* 


HOPT  V.  UTAH. 


i2i 


.Tolni  F.  Tiinior."  Tlio  confusioji  ujion  the  subject  arises  from 
tlio  fiiiliirc  to  s(at(!  that  the  body  wliicli  the  father  of  tl>o  de- 
ceased l(>tt  at  th(!  raih'oad  depot  was  tlie  same  as  that  shij)ped 
from  Kc'hcj  to  Salt  Lake  City.  It  was.  perhaps,  to  this  part  of 
tlie  case  the  court  referred  when,  in  tlic  eharge  to  the  juiy,  it 
said  tliat  the  ])rosecutiou  "has  inti-oduced  a  vast  amount  of 
circumstantial  evidence."  Be  this  as  it  may,  it  was  a  material 
(jucstion  before  the  jury  whether  the  body  examined  by  the 
sui',ii;'eon  was  the  same  one  that  the  fatlier  of  the  deceased  liad 
left  at  the  (le[H)t,  and,  therefore,  the  body  of  tlic  ])erson  for 
whose  murder  the  defendant  and  Emerson  were  indicted.  If 
it  wi;s  uot,  then  all  that  he  said  was  imnmterial.  If  it  was,  the 
»>vid('iic(>  otiicrwise  connecting  defendant  with  the  death  of  John 
K.  TunuM',  tiie  statements  of  that  witness  as  to  the  condition 
of  the  corpse,  the  nature  of  the  injuries  —  whether  necessarily 
fatal  oi'  not  —  observable  npon  the  body  examined  by  him,  and 
how  the  blows,  apparent  upon  inspection  of  it,  were  probably 
indicted,  became  of  great  consequence  in  their  bearing  upon 
the  guilt  or  innocence  of  the  defendant  of  the  crime  of  mur- 
<ler. 

Xo  propiH"  foundation  was  laid  for  the  question  propounded 
to  the  sinvj,(M)n  as  to  who  pointed  out  and  identified  to  him  the 
])ody  he  examined  as  that  of  John  F.  Turner.     lie  had  ])revi- 
ously  stated  that  iic  did  not  personally  know  the  deceased  and 
(lid  not  recognize  the  body  to  be  his.     lie  did  not  know  that 
it  was  the  body  which  the  father  of  the  deceased  desired  hhn 
to  examine;  ct>nsequer.tly  his  answer  could  only  place  before 
the  jury  the  statement  of  some  one  not  inider  oath,  and  who, 
being  absent,  could  not  bo  su])jected  to  tlic  ordeal  of  a  cross- 
examination.     The  question  plainly  called  for  hearsay  evidence, 
which,  in  its  legal  sense,  "denotes  that  kind  of  evidence  which 
does  not  derive  its  value  solely  from  the  credit  to  be  given  to 
the  witness  himself,  but  rests,  also,  in  part  on  the  veracity  and 
('omi)etency  of  some  other  person."     1  Greenleaf,  Ev.,  §  09;  1 
Phil.  Ev.,  lil'.t.     The  general  rule,  subject  to  certain  well  estab- 
tablished  excei>ti()ns  as  old  as  the  rule  itself  —  applicable  in 
civil  eases,  and,  therefore,  to  be  rigidly  enforced  where  life  or 
liberty  is  at  stake, —  was  stated  in  2[tma  Queen  v.  Hepburn^ 
7  ('ranch,  290,  295,  to  be,  "that  hearsay  evidence  is  incompe- 
tent to  establish  any  specific  fact,  Avhich  fact  is  in  its  nature 


424 


AilERICAN  CRIiHNAL  REPORTS. 


susceptible  of  being  proved  by  ^vitnesses  who  speak  from  their 
own  knowledge."  "  That  this  species  of  testimony,"  the 
court  further  said,  si)eiiking  by  Chief  .fustico  JMarsliall,  "  sui)- 
posed  some  better  testimony  whicli  miglit  be  a(Uluced  in  the 
j)articular  case,  is  not  the  sole  grounil  of  its  exclusion.  Its  in- 
trinsic wealaiess,  its  incompetency  to  sjitisl'y  tiie  miiul  of  tlie 
existence  of  the  fact,  and  the  frauds  whicli  might  be  i)racticed 
under  its  cover,  combine  to  support  the  rule  that  lu.«irsiiy  evi- 
dence is  inadmissible."  The  s[>ecillc  fact  to  bii  estal>lish(Ml  by 
proof  of  what  some  one  else  siiid  to  the  sui-geon  as  to  the  iden- 
tity of  the  body  submitted  to  his  examuuitiou  was  that  it  was 
the  body  of  John  F.  Turner. 

AVhat  Fowler  —  who  was  not  even  sliowtj  to  have  been  placed 
in  charge  of  the  body  nor  commissioned  to  deliver  it  to  the 
surgeon,  ncu'  to  be  ac(piainted  witli  the  deceased  -  said  in  tlie 
absence  of  the  prisoner  as  to  the  identity  of  the  body,  was 
plainly  heai-say  evidence  witiiin  th(5  rule  rec(»gnized  in  all  the 
adjudged  cases.  As  such  it  slioukl,  upon  the  showing  nuide, 
have  been  excluded. 

!).  The  next  assignment  of  error  relates  to  that  pru-tion  of 
the  eliarge  which  represents  the  court  as  siiying:  "That  an 
atrocious  and  dastardly  murder  has  been  committi'd  by  .some 
l)ers(m  is  appaivnt,  but  in  your  deli b(!rat ions  you  should  bo 
careful  not  to  be  inlluenced  by  any  hiding." 

Uy  tlie  statutes  of  Utah.  "  mui'ck^r  |)(!r|)('t rated  \ty  poison, 
lying  in  wait,  or  any  other  kind  of  wilful,  (h-libcratc,  malicious 
or  premeditated  killing;  or  committed  in  the  p 'i|K!ti"ilion  of, 
or  attem[>t  to  ])erpetrate,  any  arson,  rape,  burglary  <»/■  roldx'i'v; 
or  peri)etrated  fi'om  a  premeditated  design,  unlawfully  and 
maliciously  to  ell'ectthe  death  of  any  other  human  b(Mng other 
than  him  who  is  killed;  or  perp(!ti'at(>d  by  any  act  greatly  dan- 
gerous to  the  lives  of  otluii's,  and  evideiu-ing  a  dcpi-aved  mind, 
regardless  of  human  life,  is  murdisr  in  the  lirst  dcgrci!;  and 
any  other  homicide,  conunittcMl  under  such  (;ii'ctimslaiic(s  as 
would  have  constituted  murd<>r  at  common  law,  is  murdei-  in 
the  second  degree."  ('om|)iled  Laws  Utah,  lsT;5,  p.  ."isr*.  The 
])nnishment  ui  nuu'der  in  the  (irst  degnn^  is  death,  oi-,  upon  the 
recommendation  of  t\u)  jury,  impi-isonment  at  hard  labor  in 
the  i)enit(!ntiary,  at  tin;  discretion  of  the  court;  whih?  the  pun- 
ishment for  umrder  in  the  second  ilegroe  is  impi'isonnu;nt  ut 


IIOPT  V.  UTAH. 


rt25 


hard  labor  in  tlio  penitentiary  for  not  loss  than  live  nor  more 
than  iifteen  years.     Id.,  5SG. 

In  view  of  tliese  statutory  ])rovisions,  to  which  the  attention 
of  the  jury  was  called,  it  is  clear  that  the  observation  ])y  the 
court,  that  "an  atrocious  and  dasfardly  murder  has  been  coni- 
niitled  by  some  ])erson,''  was,  naturally,  regarded  by  them  as 
an  instructicin  that  the  olfense,  by  whomsoever  committed,  was 
murder  in  tlie  iii-st  degree,  whereas  it  was  for  the  jury,  having 
been  infoi-med  as  to  what  was  murder,  by  the  laws  of  Ttah,  to 
s;iy  wlu>tlu>r  the  facts  made  a  case  of  murder  in  tlie  lirst  degree 
or  murder  in  the  seccnid  degree. 

It  was  competent  for  the  judge,  under  the  statutes  of  Utah, 
to  state  to  the  jury  "all  matters  of  law  necessary  for  their  in- 
foi-mation,"  and,  couseipiently,  to  inlorm  them  what  those  stat- 
utes dt'lined  as  murder  in  the  lirst  degree  and  murder  in  the 
secdiid  degree.  J.atvs  of  Utali,  1S7S,  p.  1:>0;  Code  of  Crim. 
]'r(»c.,  >,',^  L*^.")— k  Ihit  it  is  (^x|)ressly  declaivd  by  the  Code  of 
Criiuiiiai  Procedui'c^  that,  while  lie  may  "state  the  testimony 
and  tU'clare  tiie  law,"  he  "must  not  charge  the  jury  in  respect 
to  matters  of  fact."  Sec.  :i.')7.  The  error  committed  was  not 
cuivd  l)y  lh((  ]>revious  ()l)servatiou  of  the  judge  that  by  the 
lausof  I'tiih  the  jury  are  "the  sole  judges  of  the  credibility 
of  the  witnesses  and  »»f  tiie  weiglit  of  the  evidence  and  of  the 
facts."  It  is  rather  more  correct  to  say  that  the  elfect  of  that 
ol)servatiou  was  destroyed  l>y  liie  statement  at  iiie  conclusion 
of  the  charge  that  tiie  murder,  by  v,  liomsoever  committed,  was 
an  atrocious  and  dastardly  one,  and  therefore,  as  the  jury 
niiglit  infei',  in  view  of  tlu^  hmguage  of  the  statute,  was  mur- 
der ill  the  lirst  (h'gree.  The  [)risoner  had  the  right  to  the  judg- 
ment of  the  jury  ujioii  the  facts,  uninHuenced  by  any  direction 
from  the  court  as  to  the  weight  of  evidence. 

For  the  reasons  stated  the  judgment  of  the  supreme  court  of 
tlie  territory  must  bi>  revei'sed  and  the  case  remanded,  with 
directions  that  tiie  verdict  and  judgment  bo  set  aside  ami  a 
new  trial  ordered. 

The  assignments  of  error,  however,  present  other  cpiestions 
of  iiiiportance,  which,  as  they  are  likely  to  arise  upon  another 
trial,  we  deem  projier  to  examine. 

4.  The  Jirst  of  these  (piestions  relates  to  the  action  of  the 
court  in  permittin>«-Carr,  called  us  a  witness  for  the  defense,  to 


420 


amehican  criminal  reports. 


give  m  evidence  a  confession  of  the  pi'isoner.  That  confession 
tended  to  implicate  the  accused  in  tlie  crime  charged. 

Tlie  adinissibihty  of  sucli  evidence  so  hirgely  depends  npon 
the  special  circumstances  connected  with  the  coni"es:;ion  that  it 
is  dillicult,  if  not  impossible,  to  formulate  a  rule  that  will  com- 
prehend all  cases.  As  the  question  is  necessarily  aihlresscd,  in 
the  lirst  instance,  to  the  judge,  and  since  his  discretion  nu;st  ho 
controlled  by  all  the  attendant  circumstances,  the  courts  have 
Avisely  forborne  to  mark  Avitli  absolute  precision  the  limits  of 
admission  and  exclusion.  It  is  unnecessary,  in  this  cas(\  that 
Ave  should  lay  down  any  general  rule  on  the  su])ject;  for  we 
are  satisfied  that  the  action  of  the  trial  court  can  bo  sustained 
upon  grounds  which,  according  to  the  weight  of  autlinrity,  are 
suillcieut  to  admit  confessions  made  by  the  accused  to  one  in 
authority. 

It  appears  that  the  defendant  Avas  arrested  at  the  railroad 
depot  in  Cheyenne,  Wyoming,  by  the  witness  Carr,  wh;)  is  a 
detective,  on  the  charge  nuulo  in  the  indictment.  Tiic  falln'r 
of  the  deceased,  pi'escut  at  the  time,  was  ujuch  excited,  and 
may  have  made  a  motion  to  draw  a  revolver  on  the  <lefeM(hiiit; 
bat  of  that  facl:  the  witness  did  not  speak  jtositively.  'i'h(>  w  it- 
ness  m;;y  have  ])revented  him  from  drawing  a  wcaniu.  and 
thiidvs  he  told  him  to  do  nothing  i-ash.  At  the  a!'re^;t  a  lai'ge 
crowd  gathered  around  the  defendant:  (^ii'r  hurried  him  n[\'  ti» 
jail,  sending  Avith  him  a  policeman,  while  he  remaine(l  behind, 
out  of  the  hearing  of  the  policeujan  and  the  defendanl.  In 
two  or  three  minutes  ho  joined  them,  and  immediately  the 
accused  commenced  making  a  confession.  What  conversation, 
if  any,  occui'red  betwei-n  (he  latter  and  the  ])oliceman  during 
the  brief  period  of  two  or  three  minutes  jn'eceding  the  confes- 
sion Avas  not  known  to  the  witness.  So  far  as  witness  knew, 
the  bill  of  exc(>|)tions  stales, ''the  confession  Avas  voluntary 
and  unindueiu'ed  by  hopes  of  reward  or  f(Mr  of  piuiishmeiit; 
Ik;  held  out  no  indueenient,  and  did  not  know  of  any  induee- 
nnmt  IxMiig  held  out  to  defendant  to  confess."  This  was  all 
the  evideiu'e  showing  or  tending  to  sliow  that  the  confession 
Avas  A'oluiuary  or  uninlhienced  l)y  hope  of  reward  or  fear  of 
punishment. 

While  s(nu<'  of  the  adjudged  cases  indicate  distrust  of  con- 
fessions which  aj'o  not  judicial,  it  is  certain,  as  observed  by 


IIOPT  v.  UT.VH. 


427 


Baron  Pnrlcc  in  Hcrjhm  r.  DaM.  2  Den,  Cv.  Cas.,  430,  445,  tliat 
the  I'lilo  against  their  admissibility  has  been  sonietin^os  cavi'iecl 
too  fai',  and  in  its  application  jnstico  and  common  sense  have 
too  fi'e(]uently  boon  saci-ificnl  at  the  slirino  of  mercy.  A  con- 
fession, if  fi'cely  and  voluntivvily  made,  is  evidence  of  the  most 
satisfactoiy  character.  Such  a  confession,  said  Eyro  (C.  B.,  1 
Leach,  2^V.)\  "is  deserving!:  of  the  liighest  credit,  because  it  is 
]iresun\ed  to  flow  from  the  stroiii:;-(>st  son-;o  of  g"uiU,  and,  tliei'O- 
fore,  it  is  admitted  as  ])ro()f  of  tlie  crime  to  wliich  it  refers." 

Ek'mentary  writei-s  of  authority  concur  in  sayin<>'  that, 
■while  from  the  very  nature  of  such  evidence  it  must  be  sub- 
jected to  carefid  scrutiny  and  received  witli  ,;rreat  caution,  a 
(lehbci'ate,  voluntary  confession  of  ^-uilt  is  anion;.''  the  most 
elfectuid  ])r(»ofs  in  the  law.  und  constitutes  the  stron'i,-e.;t  evi- 
dence ayainst  the  party  ma.king'  it  that  can  Ik;  iviven  of  tho 
facts  stated  in  such  confession.  1  Greeideaf.  Ev.,  -;$  L*15;  1 
Arc]d)old,  Cr.  PL,  1-2.5;  1  rhillipps,  Ev.,  5:i;5-:U;  Starkio, 
Ev.,73. 

But  the  ])resum])tion  npon  which  Avciglit  is  !j;iven  to  such 
evidence,  numely,  that  one  wlio  is  innocent  will  nof  imperil  his 
safety  or  prejudice  liis  interests  by  an  mitriie  stntenient,  ceases 
when  llie  confession  appears  to  have  been  made  either  in  con- 
siMiueiu':>  of  inducements  of  a  teu»poral  na'ure,  liehl  out  by 
one  in  autliority,  toueiiin,i>'  the  char_v;e  preferred,  or  bt^eause  of 
a  tlu'eat  oi-  promise  by  or  in  Ihe  pr(\-!{Mice  of  such  person, 
which,  opci'ating'  upon  tlie  tears  or  ho]ies  of  tlu)  accused,  in 
refei'enec  to  the  chai^g'e,  (le[)rives  liim  of  tliat  freedom  of  will 
or  self-control  essential  to  mal:e  his  confc^ssion  vohmtary 
within  tlio  meaning  of  tlio  hiw.  Tested  by  these  conditions, 
tlu-re  secuis  to  have  been  no  reason  to  e.\clud(^  the  confession 
of  tlie  accused;  for  tho  existence  of  any  sucli  inducements, 
threats  or  pi'omises  seems  to  have  been  n(\g'atived  by  tlie  stato- 
lueut  of  the  einaimstances  iiiuh-r  which  it  was  made. 

But  it  is  coiiteiKhHl  that  the  court  ei-red  in  not  excluding  this 
proof  until  the  prosecution  produced  the  policeman  and  proved 
that  nothing  was  said  or  done  by  him,  in  the  ;ibsence  of  Carr, 
wliii-h  unduly  inlluenceil  the  making  of  the  confession.  Tho 
argument  is  that,  jiossibly,  the  ]ioliceinan  olfered  such  induco- 
ineuts,  or  made  such  threats  or  promises,  that  the  prisoner, 
Avhen  joined  by  CaiT,  was  not  in  a  condition  of  mind  to  niako 


428 


AMERICAN  CRIMINAL  REPORTS. 


a  confession  wliich  tlie  law  would  deem  volimtiiry.  This  posi- 
tion, although  plausible,  is  not  sustained  by  authority',  nor  c(ju- 
sistcnt  with  sound  reason.  The  circumstances  narrated  by  tlie 
Avitness  ])roved  the  confession  to  be  voluntary,  so  far  as  iuiy- 
tliing-  was  said  or  d(me  by  him  on  the  immediate  occasion. 
There  was  nothini,'  disclosed  which  made  it  the  (hity  of  tlie 
court  to  require,  as  a  condition  precedent  to  the  admission  of 
the  evidence,  that  the  prosecution  should  call  the  policeiuiiu 
and  show  tliat  he  had  not,  when  alone  with  the  accused,  unduly 
inlluenced  him  to  make  a  confession. 

In  Pn.i-  V.  Chirrs,  4  CaiT.  cV:  I'ayne,  L'lM;  X  C,  .'}  Kussell  on 
Ci'imes  (Sharswood's  ed.),  4.'>I,  4.'):*,  the  i)rosecution  pro[)osc(l 
to  give  in  evidence  a  confession  made  by  the  accused  before 
the  coroner.  It  ap])earin,<''  that  a  magistrate  had  ]>reviously 
an  intei'view  with  the  prisoner,  it  was  suggested  that,  iis  li(> 
may  have  b(>en  told  liy  that  oHicer  that  it  was  lu'ttei'  to  con- 
fess, the  prosecution  should  call  him.  Hut  the  court  said  that, 
■while  it  would  l)e  fair  in  the  prosecutoi's  to  call  th(?  magistrate, 
it  would  not  compel  them  to  do  so,  but,  if  they  <lid  not.  llie 
lu'isnner  might  do  so  if  he  chose.  In  Ium:  v.  Willluiiix,  Kos- 
coe's  Ci'im.  Ev.  (7th  Amer.  ed.),  54;  ?>  Kussell  (»n  Crimes,  id.. 
4:!:*,  it  appeared  that  a  jn-isoner,  being  in  the  custody  of  two 
constables  on  a  charge  of  arson,  a  third  peison  went  into  the 
room.  The  prisoner  imnuvliately  asked  him  to  go  into  anotln  r 
room,  as  he  wished  to  speak  to  him.  They  went  into  tiiat 
room  and  the  pt-isoner  made  a,  statement  to  that  person.  It 
was  contended  that  tiie  constabl(>s  ought  to  be  called  to  prove 
that  they  ha<l  done  nothing  to  induce  the  j)i'isoner  to  confess. 
But  Taunton,  .!.,  after  consulting  with  Litlledale.  .!..  said : 
"We  do  not  think,  according-  to  the  usual  practice,  that  we 
ought  to  exchuU^  the  evidence  because  a  constal)l(>  may  have 
induced  the  prisoner  to  make  the  statement;  otherwise  lie 
must,  in  all  cases,  call  the  magistrates  or  constables  before 
whom  or  in  whos(>  custody  the  prisoucM-  has  been." 

In  Jiex  V.  \V(ifii('i\  ;{  Iluss.  on  Crimes  (Sliarswood's  ed.), 
^'.Vl,  the  ])risoner,  when  before  the  committing  magisti-ati', 
having'  been  duly  cautioned,  madc^  a.  confessioii,  in  which  he 
alluded  to  one  j)reviously  made  to  a  constable.  It  was  i-e- 
niarked  by  the  C(mrt  that  although  it  was  not  deenunl  neces- 
Bary  that  a  constable,  in  whose  custody  a  prisoner  had  been, 


IIOPT  V.  UTAH. 


429 


sliould  1)',^  onllod  in  ovoiy  cnso,  yet,  in  view  of  tlio  reference  to 
liini,  he  should  be  called.  The  constable  bein;;-  called  proved 
that  lie  did  nf)t  nse  any  undue  means  to  obtain  a  confession, 
but  he  disclosed  the  fact  that  he  had  i-eceived  the  prisoner  from 
another  constable,  to  whom  the  jM-isoner  hvA  made  some  state- 
ments. As  it  did  not  a]ipe;ir  that  any  confession  was  nuido  to  the 
latter,  and  only  a])peared  that  ;i  statement  was  made  that  mi<^ht 
either  be  a  ccmfession  or  a  denial,  or  an  exculpation,  the  court 
would  not  riMjuire  him  to  be  calh^l.  S.  ('.,  lIosco(>'s  ('rim.  ]']v. 
(7th  Amer.  ed.),  ~)4~^>.  Jiosco((  (p.  'u>i)  states  the  rule  to  be, 
that,  "in  order  to  induce  the  court  to  call  another  olllcer  in 
whose  custody  the  ]U'isoner  has  been,  it  must  appear  either  that 
souK^  inducement  has  been  used  by  or  some  express  reference 
made  to  such  oHicer."  JJussell  says:  "  Vov  the  purpose  of  in- 
tnuhicin;."'  a  conH^ssicm  in  evidence,  it  is  unnecessary,  in  gen- 
eral, to  do  more  than  negative  any  ])romise  or  inducement  held 
out  hy  the  person  to  whom  the  conl'es.sion  was  made."  A"ol.  3, 
p.  4:{'l. 

While  a  confession  made  to  one  in  authority  should  not  go 
to  the  jury  unless  it  app(Nirs  to  the  court  to  have  been  volun- 
tary, yet  as  the  plaintilf  in  ei'ror  chose  to  let  its  admissibihty 
rest  upf)n  the  case  nuidc  by  the  detective,  without  any  intima- 
tion that  it  would  be  dilferent  if  the  ])oliceman  was  examined, 
and  since  there  was  nothing  in  the  circumstances  suggesting 
collusion  between  the  onicers.  we  do  not  thiidc  the  court  was 
bound  to  exclude  the  confession  n[)on  the  sole  ground  that  the 
1)()1  iceman  was  not  introdu(!ed. 

5.  The  last  relates  to  the  action  of  the  court  in  admitting, 
as  a  witness  in  behalf  of  the  prosecution,  Emerson,  then  serv- 
ing (mt  a  sentence  of  conlinement  in  the  penitentiary  for  the 
crime  of  murder,  and  the  judgment  against  whom  had  never 
been  reversed.  ]Iis  testimony  tended  to  implicate  the  defend- 
ant in  the  crime  charged  against  him.  Objection  was  made 
to  his  competency  as  a  witness,  but  the  objection  was  over- 
ruled. 

At  the  time  the  homicide  was  committed,  and  when  the 
indictment  was  returned,  it  was  provided  by  the  criminal 
j)rocedure  act  of  Utah  of  ISTS,  that  "  the  rules  for  determining 
the  competency  of  witnesses  in  civil  actions  are  ap[)licable  also 
to  criminal  actions  and  proceedings,  except  as  otherwise  pro- 


430 


AMEPtlCAN  CRIMINAL  REPORTS. 


vidod  in  this  act."  Ami  tlio  civil  pvacticc  act  of  that  territory 
provided,  section  374,  tliat  ''all  persons,  withont  exception, 
otherwise  than  as  specified  in  tliis  cha])ter,  may  l)e  v/ilnesscs 
in  any  action  or  proceeding-.  Facts  which,  by  the  eomnion 
law,  would  cause  the  exclusion  of  witnesses,  may  still  beslKnvn 
for  (he  purpose  of  affecting  their  credibility."  Compiled  L:i\vs 
T'tah,  .")(>.'».  Further,  section  378,  that  "  ]iersons  against  whom 
judgment  has  been  rcndere<l  u])on  a  conviction  for  felony, 
unless  pardoncil  by  the  governor,  or  such  judgment  lias  been 
reversed  on  aj)i)eal,  shall  not  be  witnesses." 

On  the  !ith  day  of  ]\larch,  1S-S2,  after  the  date  of  the  rJleged 
homicide,  but  prior  to  the  trial  of  the  case,  an  act  was  ])nsse(l 
which  repealed  the  section  of  the  civil  practice  act  last  f;iii)ted. 

It  is  contended  that  such  repeal,  by  Avhich  convicted  Anions 
were  made  competent  witnesses  in  civil  cases,  did  not  m;\]n' 
them  competent  in  criminal  cases;  in  other  words,  for  such  is 
the  e'l'ect  of  the  argument,  those  who  were  excluded  as  wit- 
nesses, under  the  civil  practice  act,  at  the  time  the  criminal 
procedure  act  of  1S7S  Nvas  adopted,  remained  incomi:cl(-nt  in 
criminal  cases,  xmless  their  incompetency,  in  such  cases,  wiis 
removed  by  some  modification  of  the  civil  practice  actexpr;::sly 
declared  to  have  reference  to  criminal  prosecutions. 

In  this  view  we  do  not  concur.  It  was,  wc  think,  intcMided 
by  the  criminal  ])rocedure  act. of  1S7S,  to  make  thecomjietcncy 
of  witnesses  in  criminal  actions  and  proceedings  d(>pend  upon 
the  inquiry  whether  they  were,  when  called  to  testify,  excluded 
by  the  rules  determining  their  comi)etency  in  civil  action  ;.  If 
competent  in  civil  actions,  when  calh'd,  they  were,  for  that 
reason,  competent  in  criminal  proceedings.  The  pai'pose  was 
to  have  one  rule  on  the  subject  applicable  alike;  in  civil  and 
criminal  proceedings. 

But  it  is  insisted  that  the  act  of  1SS2,  so  construed,  would, 
as  to  this  case,  be  an  ex  j^od  facto  law,  within  the  meaning  of 
the  constitution  of  the  United  States,  in  that  it  permitted  the 
crime  charged  to  be  established  by  witnesses  whoui  the  law, 
at  the  time  the  liomicide  was  committed,  made  incompetent  to 
testify  in  any  case  whatever. 

The  provision  of  the  constitution  which  prohibits  tin*  slates 
from  passing  ex ptMfado  laws  was  examined  in  J\fhuj  v.  Mis- 
soui'i,   107  LT.   S.,  221.     The  whole   subject  was  there  fully 


KOPT  V.  UTAH. 


431 


and  carefully  consitlored.  The  court,  in  view  of  the  adjudged 
cases,  as  well  as  upon  principle,  held  that  a  provision  of  the 
constitution  of  ^lissouri  denying  to  the  prisoner,  cliarged  with 
murder  in  the  first  degree,  tlio  benelit  of  the  law  as  it  was  at 
tlie  commission  of  offense  —  under  wliich  a  conviction  of  mur- 
der in  tlie  second  degree  was  an  acquittal  of  niurdor  in  the 
'first  degree,  even  though  such  judgment  of  conviction  was 
subsecjucntiy  reversed  —  was  in  conllict  with  the  constitution  of 
tlie  United  States. 

Tliat  decision  proceeded  upon  the  ground  that  tlie  state  con- 
stitution (le[)rivod  the  accused  of  a  substantial  right  which  the 
law  gave  him  when  the  offense  was  committed,  and,  therefore, 
in  its  ap[)lication  to  that  offense  and  its  consequences  altered 
the  situation  of  the  party  to  his  disadvantage. 

15y  the  law  as  established  when  the  oU'ensc  was  committed, 
Kring  could  not  have  been  punished  with  death  after  his  con- 
viction of  murder  in  the  second  degree,  whereas,  by  the  abro- 
gation of  that  law  by  the  constitutional  provision  subsequently 
adopted,  ho  could  thereafter  bo  tried  and  convicted  of  murder 
in  the  lii-st  degree,  and  subjected  to  the  punishment  of  death. 
Thus  the  judgment  of  conviction  of  murder  in  the  second  degree 
was  de])rived  of  all  force  as  evidence  to  estaitlish  his  absolute 
immunity  thereafter  from  punishment  for  murder  in  the  lirst 
degree.  This  was  held  to  be  the  deprivation  of  a  substantial 
right  which  the  accused  had  at  the  time  the  alleged  olfense 
was  committed. 

But  there  are  no  such  features  in  the  case  before  us.  Stat- 
utes which  simply  enlarge  the  class  of  persons  who  may  be 
competent  to  testify  in  criminal  cases  are  not  ex  post  facto  in 
their  application  to  prosecutions  for  crimes  committed  prior  to 
llieir  passage;  for  they  do  not  attach  criminality  to  any  act 
]>feviously  done,  and  which  was  innocent  when  done;  nor  ag- 
gravate any  crime  theretofore  committed ;  nor  provide  a  greater 
l)unishment  therefor  than  was  prescribed  at  the  time  of  its 
commission;  nor  do  they  alter  the  degree,  or  lessen  the  amount 
or  measure,  of  the  proof  wliich  was  made  necessary  to  con- 
viction when  the  crime  was  committed. 

The  crime  for  which  the  present  defendant  was  indicted,  the 
])unislimeut  prv^scribcd  therefor,  and  the  ([uantity  or  the  degree 
of  proof  necessary  to  establish  his  g'uiltj  all  remained  unaf- 


482 


a:\ierican  crdiinal  reports. 


footed  by  tlio  subsoqucnt  statute.  Any  statutory  altovation  of 
the  Ic^gjil  rules  of  evidence  which  would  authorize  conviction 
iil)on  less  ])roof,  in  amount  or  dei^ree,  than  was  re(|uired  when 
the  olfense  was  coniniittod,  nii^ht,  in  respect  of  that  olfense. 
be  obnoxicnis  to  the  constitutional  inhibition  upon  er  pout  fmio 
laws.  I'ut  alterations  which  do  not  increase  the  punishniont. 
nor  ohauiie  the  in<iro(lients  of  the  offense  or  the  ultinuite  facts 
necessary  to  establish  guilt,  but  —  leavin<^  untouched  the  nature 
of  the  crime  and  the  amount  or  de<>i'ee  of  proof  essential  to 
conviction  —  only  remove  existin<;  restrictions  ui)on  the  ooni- 
petoncy  of  certain  classes  of  ])ers(ms  as  Avitnesses,  relat(\  to 
modes  of  pi'ocedure  only,  in  which  no  one  can  be  said  to  h;ive 
a  vested  right,  and  which  the  state,  upon  grounds  of  ]nil)lic 
policy,  may  regulate  at  pl(?nsure.  Such  regulations  of  llic 
mode  in  which  the  facts  constituting  guilt  nuiy  he  placed 
before  the  jury  can  b(nnad(Mi)iplical)le  to  ])rosecutioiis  oi'ti'iiils 
thereaft(M' had  without  reference  to  the  date  of  the  connnissioii 


of  the  oll'onse  chariicd. 


Jndymi'nt  rti'e):s(ul. 


NoTF.. —  I'lrliiiiiiiar;/  inquiry. —  Tlu>  iiKjuiry  whetlu'r  confessions  wero 
inado  under  such  cireunistiinces  as  to  nialie  tlicni  comitetcnt  cviilencc  is  a 
preliminary  one  to  be  niado  by  tlie  court,  in  whicli  a  full  investi,i:jation 
slioultl  be  liad,  with  a  view  to  determine  the  competency  of  the  ])ropose'l 
confi's;.ions.  and  it  is  for  the  juiIko,  after  such  investi};atioi),  to  determine 
wliether  the  confession,  or  any  part  of  it,  shall  be  admitted  in  evidence  or 
n(jt.  Such  an  investigation  o\iji;ht  not  to  be  made  within  the  hearing  of  the 
jury.     SimmoHS  V.  State,  61  Miss.,  21:5. 

•'  While  the  jury  is  a  component  of  the  vourt,  it  is  not  Ji  part  f>f  its  duty 
to  determine  upon  the  comjietency  of  evidence,  nor  is  it  necessary  that  it 
should  be  present  while  the  jiidj^o  examines  a  witn(>ss  to  tletcrmiiu!  upon 
the  competency  of  his  tc.-itimony."  Kniincr  v.  State,  01  Miss.,  l.")S;  Hall  r. 
State,  O.TOa.,  00. 

It  is  a  (piestion  for  the  jmlge,  in  every  case,  to  determine  whether  or  not 
the  alleged  words  of  inducement  were  aitually  such  as  to  inchice  tho  prisoner 
to  make  a  confession  of  guilt.  1{.  v.  Garner,  1  Den.  ('.  C,  !]2!).  Admissions 
by  a  jn'isoner  chargoil  with  murder,  induced  i)y  a  promise  from  the  i)rose- 
cuting  attorney,  that,  if  the  prisoner  would  tell  what  he  knew  of  tho  nnu-der. 
he  would  do  all  he  couM  to  save  him,  are  not  admissible;  nor  can  state- 
ments made  by  the  ])risoner  to  other  jx^sons  before  such  promise  is  with- 
drawn be  received  against  him.     Simmons  r.  State,  01  Miss.,  213. 

The  words,  "you  had  better  tell  the  truth,"  have  sometimes  been  lield  or 
said  to  render  a  subsecpicnt  confession  inadmissible,  because  they  would 
probably  bo  understood  to  mean  that  it  would  be  better  to  say  somethin;r. 
and  til  ;t  "tho  truth"  in  the  mind  of  tho  speaker  implied  a  confession  of 


HOPT  r.  UTAH. 


433 


ffnilt  The  Qiiecn  r.  Jarvis,  L.  R.,  1  C.  C,  90,  09;  Rcrfina  v.  Fennel! ,  14 
Cox,  C.  C,  607;  Begina  r.  Doherfij,  13  Cox.  C.  C,  23.  But  similar  words, 
wiien  not  implying  that  the  speaker  expected  a  confession,  but  only  the 
truth,  have  been  held  or  said  not  to  render  a  subsequent  confession  inail- 
uussible.  The  Queen  v.  Reeve,  L.  R.,  1  C.  C,  303;  S.  C,  12  Cox,  C.  C,  179; 
Ite'jina  v.  Baldey,  5  Cox,  C.  C,  r)23-529.  The  words,  "  you  had  better  own 
up,"  were  held  to  be  equivalent  to  saying,  "you  had  better  confess,"  sind 
therefore  rendered  a  confession  inadmissible.     Com  v.  Nott,  135  Ma.ss.,  272. 

When  it  apjx^aied  that  in  the  middle  of  thij  night,  after  the  officer  who 
liad  arrested  the  prisoner  had  retired  for  rest,  the  prisoner,  instead  of  being 
allowed  the  same  privilege,  was  visited  by  three  persons  in  succession,  whose 
mission  appears  to  h.ave  l)een  to  obtain  confessions  by  impressing  upon  the 
mind  of  the  prisoner  that  it  would  be  better  for  him  and  he  would  get  off 
easier  by  making  a  confession.  None  of  tliese  iwrsons  was  the  ofiicer  in 
charge ;  but  their  admission  to  the  cell  at  such  an  unreasonal)le  hour  car- 
ried with  it  an  implication  of  the  officer's  consent  to  their  admissimi,  etc. 
Mr.  Justice  Cooley,  commenting  ujioii  this  state  of  facts,  in  delivering  the 
opinion  of  the  court  in  People  v.  WoJeott,  51  Mich.,  612,  says:  "  No  reliance 
can  he  placed  upon  admissions  of  guilt  so  obtained ;  for  the  very  obvious 
reason  that  they  are  not  made  because  they  are  true,  but  because,  whether 
true  or  false,  the  accused  is  led  to  believe  it  is  for  his  interest  to  make  them. 
The  cases  of  Fitatc  v.  Phelps,  11  Vt.,  110:  S.  C.  34  Am.  Dec,  072:  Shite  v. 
Walker,  34  Vt.,  290;  Heetor  v.  State,  2  Mo..  100:  S.  C,  22  Am.  Dec,  454; 
Stater.  Bosticic,  4  HaiT.,  503;  State  v.  Guild,  10  N.  J.,  103:  S.  C,  18  Am. 
Dec,  404;  Spears  v.  State,  2  Ohio  St.,  583;  Coii).  v.  Tai/lur,  10  Gray,  190; 
Smith  V.  State,  10  Ind.,  100;  Miller  r.  People.  39  111.,  l.-iT;  Cain  v.  State,  18 
Tex.,  387;  Darin  i\  State,  2  Tex.  App..  588;  Van  liuren  v.  State.  24  Miss., 
.-.12;  Jordan  v.  State,  32  Miss.,  382:  People  v.  Barrie,  49  Cal..  342:  State  v. 
York,  37  N.  H.,  175;  Miller  v.  State,  40  Ala.,  54;  Porter  v.  State,  55  Ala., 
95;  State  v.  Whitfield,  70  N.  C,  3.")0,  :uid  State  v.  Hagan,  54  Mo.,  192,  may 
all  be  cited  in  sujiport  of  tlic  \  icw.s  here  expressed,  and  the  list  might  easily 
te  iiicrc.'i.sed  very  considerably.  The  ciuse  of  Flagg  v.  People,  40  Mich.,  700, 
has  sufficient  resemblance  to  the  one  before  us  to  render  what  is  there  said 
ill  iK>iut,  and  we  refer  to  it  for  a  further  expression  of  our  views  on  the  gen- 
eral subject." 

CorpuH  dclieti. —  A  confession  is  not  evidence  in  any  case  m  the  absence 
of  i)r()of  of  the  corpus  delieti,  but  that  fact  need  not  be  proved  beyond  the 
jKissibility  of  a  doubt,  but  is  to  be  found  by  the  jury  like  any  ether  fact  in 
the  case.  Gray  v.  Com.,  101  Pa.  St.,  380.  See,  also,  Williams  et  al.  v.  The 
People,  101  111.,  382. 

Mental  condition  of  accused  at  time  of  making. —  Wlien  confessions  of 
the  accused  are  introduced  in  evidence  against  him,  if  qualified  to  testify 
under  the  statute  in  his  own  behalf,  he  ought  to  be  permitted  to  explain  his 
mental  condition  at  the  time  he  made  the  confessions,  and  the  inducements 
and  motives  operating  upon  his  mind,  in  order  that  the  jury  may  be  afforded 
an  opportunity  to  judge  of  their  proper  value  as  evidence.  Simmons  v. 
State,  61  Miss.,  243.  See,  also,  Com.  v.  Brayman,  136  Mass.,  438. 
Vol.  IV  — 28 


434 


AMERICAN  CRIMINAL  REPORTS. 


Keenan  v.  The  People. 

(104  111.,  385.) 

New  trial  :  Newly  discovered  evidence. 

New  trial  granted  when  witness  discovers  that  he  was  honesti^t 

MISTAKEN  IN  HIS  TESTIMONY  AS  TO  CERTAIN  JfATERIAL  FACTS.— On  the 
trial  of  ono  for  murder,  the  only  evidence  connecting  the  accused  with 
the  crime,  which  was  committed  in  the  city  of  Cliicago,  was  the  testi- 
mony of  a  saloon-keeper  of  that  city,  who  testified  to  facts  and  circum- 
stances pointing  very  strongly  towards  his  guilt  or  participatio-.i  in  the 
homicide,  no  witness  seeing  the  murder  or  identifying  the  party  who 
committed  the  act.  The  prisoner  denied  all  the  material  facts  in  tins 
witness'  testimony,  and  testified  to  being  absent  in  the  country  on  the 
night  of  the  murder,  when  the  sal(X)n-kecper  said  lie  was  in  his  place  of 
business,  about  10  or  13  o'clock,  the  accuse«l  stating  that  early  in 
the  morning  after  the  murder  took  place  he  boarded  a  freight  ti'ain  going 
into  the  city,  as  it  was  moving  slowly,  and  conci^iled  himself  in  a  car, 
the  contents  of  which  ho  descrilied,  to  some  extent.  In  this  he  was  in 
some  measure  corrol)orated  by  other  witnesses  as  to  the  facts  and  cir- 
cumstances detailed  by  him,  and  as  to  the  contents  of  one  of  the  cai-s  on 
that  morning  train,  thus  presenting  a  question  to  the  Jiu'v  ns  to  whose 
story  and  version  were  true,  or  ontitlefi  to  belief.  To  rebut  the  prison- 
er's statement,  witnesses  were  called  who  testirK;d  that  the  car  doors  on 
such  freight  train  were  shut,  and  sealed  with  tin  sejils,  which,  on  exuin- 
in.ation,  after  the  arrival  of  the  train  in  Chicago,  were  found  to  in<licat<> 
no  evidence  of  having  Iwen  broken,  the  witnesses  exi)ri'.«siiig  tlie  opinion 
tliat  the  car  could  not  have  l)een  entered  without  disturbing  the  seals  so 
as  to  be  readily  detected.  The  jury  found  the  accused  guilty,  thereby 
giving  no  credit  to  his  evidence.  On  motion  for  a  new  trial,  allidavits 
of  several  persons  were  protluced,  one  of  them  being  a  witness  who  had 
testified  for  the  people,  who,  after  exiwrimenting  with  car  doors 
fastened  and  sealed  as  the  cars  on  the  train  sj)oken  of  were,  state<l  on 
oath  that  they  found  that  cai-s  fastened  the  same  as  the  ont*  the  accused 
claimed  to  have  entered  could  be  ojwned  and  closed  leaving  the  seals  in 
apparent  good  order,  and  without  breaking  or  injuring  the  same,  and 
that  they  would  so  testify  if  a  new  trial  should  be  gi'ante<l.  Tlie  facts 
stated  in  these  affidavits  were  not  contradicted,  nor  was  anything  pre- 
sented to  break  their  force.  The  court  denied  the  motion  for  a  new  trial. 
Held,  that  the  court  erred  in  refusing  a  new  trial,  in  order  that  the 
newly  discovered  evidence  might  be  heard. 

Writ  of  Error  to  tho  Criminal  Court  of  Cook  County ;  the 
Hon.  George  Gardner,  Judge,  presiding. 

John  Keennn  was  indicted  in  the  court  below  for  murder, 
and  upon  trial  was  convicted.  A  motion  for  a  new  trial  was 
denied,  and  the  accused  was  sentenced  to  death.  He  thereupon 
sued  out  this  writ  of  error. 


the 


KEENAN  V.  THE  PEOPLE.  435 

Messrs.  Storch  c&  Shuman,  for  the  plaintiff  in  error. 
Mr.  LutJier  Lafihi  M'dls^  state's  attorney,  for  the  people. 

Mr.  Justice  Dickey  delivered  the  opinion  of  the  court. 

The  12th  of  November,  1870,  was  the  date  of  the  assembling 
of  an  immense  concourse  of  people  in  the  city  of  Chicago. 
Every  part  of  the  city  was  crowded  with  strangers.  At  such 
times  evil-doers  abound,  and  become  active.  During  the  night 
of  that  day,  and  about  4  o'clock  in  the  morning  of  the  13th 
day  of  November,  the  residence  of  ]\[r.  Ilensley,  situated  on 
Be  Kalb  street  in  the  western  part  of  the  city,  Avas  entered  by 
burglars,  and  Ilensley  received  three  gunshot  or  pistol  wounds, 
producing  almost  immediate  death.  The  other  members  of  the 
family,  aroused  from  their  slumbers,  came  to  the  scene,  and 
found  Ilensley  in  a  d^-ing  condition.  He  said  nothing  tending 
to  identify  the  murderer  or  murderers.  His  mother  saw  one 
uuin  escape  througli  the  front  doors,  which  were  at  the  time 
opened.  A  revolver  was  found  near  where  the  deceased  fell. 
A  slioe  was  also  found  in  tlie  vestibule,  between  tlie  doors 
leadinir  to  the  street.  A  window  in  the  basement  storv  was 
found  to  have  been  forced  open,  and  a  screw-driver  was  also 
left  by  the  invadei's.  Some  clothing  was  taken  from  tlie  room 
in  which  deceased  had  lodged,  wliich  was  afterwards  found, 
hut  there  were  no  circumstances  shown  in  connection  witli  tlie 
•screw-driver  or  the  clothes  in  any  way  tending  to  the  identifi- 
cation of  the  offenders. 

Alth6ugh  the  police  officers  made  every  effort  to  solve  the 
pi'ohlem,  and  ascertain  who  committed  the  terrible  crime,  no 
lurtlier  light  was  discovered  on  tliat  subject  until  about  the 
montli  of  June  or  July,  1881;  nearly  a  year  and  a  half  after 
tho  mtu'der.  About  that  time,  Ilabercorn,  the  principal  wit- 
ness in  this  case,  gave  to  the  police  a  statement,  in  substance 
thp  same  as  that  sworn  to  by  him  on  the  trial.  The  substance 
of  his  testimony  on  the  trial  was,  that  for  a  short  time  before 
the  murder  Keenan  and  two  other  men  (Conners  and  Riley) 
were  often  together  at  a  saloon  kept  by  the  witness,  and  that 
on  tlie  night  of  the  12th  of  November,  between  10:  30  o'clock 
that  night  and  midnight,  these  three  men  were  at  that  saloon 
and  cnTOffed  in  "  a  fuss  among  themselves,"  or  animated  dis- 
putc,  about  some  matter ;  that  at  that  time  the  witness  was  en- 


430 


AMERICAN  CRIMINAL  REPORTS. 


gn<^c(l  in  playing  poc^l  on  a  billitird  tabic,  with  a  man  by  tlio 
name  of  Wallace,  and  did  not  hear  what  these  men  said  to 
each  other,  or  know  what  was  the  subject  of  their  dispute; 
that  while  witness  was  so  engaged  playing  pool,  Keenan  called 
him  to  one  side,  and  asked  the  witness  for  the  loan  of  his 
"  gun,"  and  that  the  witness  stepped  behind  the  coiuiter  and 
gave  Keenan  a  revolver.  Soon  after  this  Keenan  again  called 
him  aside,  and  asked  him  for  a  bottle  of  whisky,  and  the  Avit- 
ncss  went  again  behind  the  bar  and  gave  Keenan  a  bottle  of 
Avhisky,  and  the  three  men,  Keenan,  Conners  and  liiley,  at 
once  went  out  together,  Keenan  taking  with  him  the  revolver 
and  the  whisky;  and  the  witness  returned  to  the  billiard  table, 
and  for  a  short  time  continued  the  game  with  AVallace,  but 
very  soon  quit.  AVallace  went  away,  and  the  witness  cIosimI 
the  saloon  for  the  night  and  slept  that  night  in  the  saloon,  and  on 
the  billiard  table.  The  revolver  Avhich  was  found  shortly  aft(;r 
the  murder  on  the  floor  near  where  the  deceased  fell  was  pre- 
sented to  the  witness  at  the  trial,  and  he  testified  that  the  same 
Avas  his  ])roperty,  that  he  had  owned  it  for  several  years,  and 
that  it  was  the  same  revolver  that  he  loaned  to  Keenan  the 
night  of  November  12,  1879,  as  befoi-e  stated. 

The  witness  also  testified  that  it  was  about  midnight  when 
he  closed  the  saloon,  and  that  Keenan  and  his  companions  left 
the  saloon  that  night  about  ten  minutes  before  midnight.  lie 
further  testiiied  that  on  the  next  morning,  about  5  o'clock,  ho 
Avas  roused  by  a  rap  upon  a  rear  or  side  door  of  the  saloon, 
and,  on  opening  the  door,  Keenan,  Conners  and  Ililey  came  in 
together  and  called  for  drinks;  but,  before  getting  the  spirits, 
approaching  steps  on  the  sidewalk  were  heard,  and  these 
three  men  at  once  concealed  themselves  in  a  stairway'  beliitid 
the  bar,  one  of  them  saying,  "Cheese  it  —  cheese  it,"  which  he 
said  was  a  phrase  among  thieves ;  that  the  footsteps  proved  to 
be  those  of  some  teamsters  who  habitually  came  into  this 
saloon  very  early  for  their  drinks  before  going  to  their  work; 
that  the  teamsters  stayed  but  a  few  minutes,  and  when  thoy 
left  the  three  men  in  question  came  from  their  hiding  place 
and  got  drinks,  and  soon  went  away  together. 

The  Avitness  testified  further  that  Avhile  those  three  men 
Avere  in  liis  saloon  on  that  morning,  he  observed  that  Riloy 
had  on  but  one  shoe,  and  he  asked  hira,  "  Where  is  your  other 


KEENAN  V.  THE  PEOPLE. 


m 


shoe?"  to  wliieli  Riloy  replied,  *' Keenan  or  Conners  thro  wed 
it  down  tlio  sewer."  llilev  asked  for  a  pair  of  shoes,  and  tlio 
witness  f^ave  Iiini  a  pair  of  liis  oUl  sHppers  which  were  behind 
tho  bar,  and  Riley  wore  them  away  that  mornin*^.  Ifo  also 
testilled  that  while  these  men  were  at  his  saloon  on  that  <K'ca- 
sion,  ho  asked  Keenan  for  his  pistol,  and  Keenan  rei)lied :  "  Wo 
had  a  priitty  hard  time;  I  got  tho  run;  I  lost  it;  I  will  s(piare 
up  with  you,  or  I  will  got  you  another."  IIo  further  testified 
that  during  that  day  (Xovembor  13,  1870)  ho  read  in  a  city 
newspa})er  an  account  of  tho  murder  of  Ilcnsloy,  and  that 
after  that,  and  about  (5  o'clock  that  afternoon,  Keenan  and 
Kiley  came  to  him,  and  Keenan,  calling  him  aside,  said,  "  Can 
you  keep  si  secret  ? "  and  the  witness  replied,  "  I  know  what 
the  secret  is  —  I  will  keep  it,"  and  they  said,  "  AVe  will  depend 
on  you,"  The  talk  was  here  interrupted  by  othei's  coming  up, 
and  they  went  away,  lie  further  testified  that  on  tho  11th  of 
December,  1S70,  ho  was  himself  arrested  and  put  in  jail  in 
Chicago;  that  Keenan  was  arrested  and  put  in  jail  about  a 
month  before  ho  was;  that  ho  was  kept  in  jail  until  the  Kith 
of  July,  1S8<>,  when  he  gave  bail  and  was  enlarged;  that  Kee- 
nan was  in  the  same  jail  with  him,  until  about  three  weoks 
before  the  witness  got  out  on  bail,  but  not  in  the  same  cell ; 
that  some  time  in  June,  18S0,  Keenan  was  taken  from  the  jail 
to  the  penitentiary;  and  on  the  morning  of  the  da}' Keenan 
was  talcen  away,  Keenan  stopped  at  the  door  of  witness'  cell, 
and  hiinded  to  him  certain  ])ai)ers  and  a  package  of  clothing 
to  take  home,  saying,  when  he  gave  the  papers:  "Kead  that, 
and  don't  let  any  one  see  it."  These  notes  the  witness  pro- 
duced, and  they  were  read  to  the  jury,  and  were  as  follows; 

"Friend  Lot:  When  you  Avrite  to  me  sine  your  name 
Frank  Younjir,  In  all  vour  letters  send  vour  address  if  them 
])iirtys  should  turn  up,  let  me  know  by  saying  business  is  bad, 
and  if  they  should  trow  up  their  guts  you  put  a  mark  on  the 
end  of  the  paper  like  the  one  is  on  this  but  not  so  big,  just  so 
that  I  can  see  it.  If  them  parties  sliouhl  turn  up,  and  say  that 
thing  is  yours  and  that  you  gave  it  to  mo,  you  keep  still  and  I 
will  say  it  is  mine  and  get  you  out  of  it,  if  I  got  to  put  myself 
onto  it  don't  fail  to  write  and  sine  vour  name  Frank  voung  by 
by." 

"  Friend  Lot :  tell  Kitt  Mcquaind  and  Frank  McQuaid  to 


438 


AMERICAN  CRIMINAL  REPORTS. 


write  to  me  good  by  lott  I  liope  that  you  will  get  out  you  may 
have  ray  best  regard  to  all  friends.  You  dont  noe  how  bad  I 
feel  as  bad  as  a  stub-tail  mule  in  fly  tinie.  I  wish  to  god  that 
you  was  out  lott  I  will  feel  weary  until  you  will  get  out  good 
by." 

Ilabercorn  further  testified  that  he  and  Ivcenan,  while  in 
jail  together,  often  talked  about  the  TIcnsley  murder;  that  ho 
was  afraid  the  revolver  would  bo  traced  to  him,  an<l  often  told 
Keenau  so,  and  that  Keenan  always  told  him  "not  to  be 
scared, —  that  they  could  not  prove  it;"  that  witness  often  said 
to  Keenan,  "if  those  other  fellows  were  caught  they  might 
peach,  and  he  (the  Avitness)  would  be  in  a  fix,"  and  that  Koeiian 
never  told  him  anything  else  about  this  mui'dor.  This  witness 
further  testified  that  in  ISSl,  after  Keenan  had  been  brouglit 
back  from  the  penitentiary  to  the  jail,  and  after  the  witness 
had  told  the  police  what  he  knew,  and  before  the  indietincnt 
in  this  case  Avas  found,  he  went  to  the  jail  to  take  Kccnan's 
clotJies  to  him  (which  witness  liad  ke[)t  for  liim  wJiilc  lie  was 
away),  and  at  the  jail  had  another  conversation  with  KeiMiau, 
in  which  Avitness  expressed  apprehensions  that  Kilev  woiild  he 
captured  and  Avould  turn  state's  evidence,  and  put  tin?  Avitiicss 
into  the  thii\g  as  deep  as  any  of  them,  to  v.'liicli  Keciian  i'e])li('(l, 
"  You  are  always  troul)ling  yourself  about  that  revolvei';  Ililey 
never  Avill  weaken,  liiley  will  never  say  anything."  ( )n  cross- 
examination  this  Avitness  said  he  was  still  under  indictment  for 
receiving  stolen  property  and  for  biwglary. 

There  Avas  no  other  evidence  introduced  by  the  i)ros(H'ution 
tending  in  any  Avay  to  connect  Keenan  with  this  miirdcir,  Tiiis 
testimony,  if  true,  presents  circinnstantial  evideiUM!  tending 
strongly  to  convince  the  mind  that  Keenan  was  the  mui'dcrei", 
or  at  least  one  of  the  party  by  Avhom  the  murder  was  ci>m- 
mitted. 

"Wallace,  of  Avhom  llabercoi'u  spoke  as  playing  pool  Avitli 
him,  was  not  called  by  the  prosecution.  I'eing  called  by  tho 
defense,  he  testified  that  he  had  been  an  em[iloye(!  of  the  linn 
of  Fuller  &  Fuller  for  six  years;  had  known  the  witness 
Ilabercorn  for  about  three  or  four  years,  and  utjcd  to  be  in  his 
saloon  nearly  every  night ;  that  on  the  night  of  the  murder 
(November  12, 187D)  he  played  pool  in  Ilabercorn's  saloon,  and 
it  must  have  been  along  towards  midnight  before  he  left,  and 


KEENAN  r.  TEE  PEOPLE. 


439 


mn' 


that  he  does  not  remember  of  seeing  Keenan  there  that  night ; 
that  he  supposes  if  lie  had  come  up  and  spoken  to  Ilabercorn 
he  woukl  have  seen  liim,  but  might  not  remember  it.  If  there 
had  been  (puirreling  he  would  remember  it.  If  Keenan  had 
interrupted  the  game  to  borroAv  a  revolver  of  Ilabercorn,  and 
soon  after  again  interrupted  the  game  to  get  a  bottle  of  ■\vhislcy, 
it  is  likely  it  would  have  attracted  his  attention, — but  he  saw 
no  such  thing  as  that.  Witness  said  his  memory  was  not  very 
good. 

Keenan  testifies,  in  his  own  behalf,  that  he  had  known 
Ilabercorn  some  eight  months  before  the  date  of  this  murder; 
thai  lie  spent  much  time  at  his  saloon;  that  he  knew  Conners 
and  Kilcy,  and  associated  with  them;  had  roomed  awhile  with 
Kilcy,  and  had  been  with  them  at  Ilabercorn's ;  tha't  he  saw 
Ilabercorn  on  the  11th  and  12th  of  N^ovember,  1ST9, —  on  the 
12tli  in  the  forenoon  and  also  about  4  or  5  o'clock  in  the  after- 
noon,—  and  that  he  was  again  .it  the  saloon  and  saw  him  there 
about  1(»  o'clock  on  the  morning  of  the  14th  of  Xovembcr, 
shortly  before  he  was  arrested  on  the  bridge,  but  he  sweai's  ho 
was  not  at  that  saloon  on  the  evening  of  the  12th  in  company 
with  Kilcy  and  Connei's;  that  Ilabercorn  never  lent  to  him  a 
rcvol'.er  in  his  life;  that  he  met  Ilabercorn  often  while  they 
were  in  jail  at  the  same  time;  that  lit  had  sent  notes  by  Ilaber- 
corn to  other  fellows  around  the  jail  when  Keenan  was  con- 
(incd  ill  his  cell  and  Ilabercorn  was  working  in  the  halls;  that 
he  never  saw  the  notes  read  in  evidence  until  they  were  pro- 
duced on  the  trial ;  that  he  never  wrote  such  a  thing  in  his  life; 
that  the  handwriting  of  the  notes  is  not  his,  although  in  some 
respects  it  is  like  his  writing,  but  something  different;  that  he 
never  wrote  tl:em  or  gave  them  to  Ilabercorn;  that  he  did 
giv(;  Ilabercorn  his  clothes,  and  may  have  given  him  a  note 
with  them;  that  ho  had  given  him  a  note  about  a  burglary,— 
the  Finiger  matter, —  and  he  thinks  the  end  of  it  was  ''good 
l)ye."     It  was  that  burglary  to  which  he  (witness)  had  pleaded 
guilty,  and  he  did  so  to  keep  Ilabercorn  out  of  trouble;  that 
Ilabercorn  and  others  were  with  him  when  that  burglary  was 
committed  on  tho  11th  of  Xovember,  1870;   that  it  is   true 
Ilabercorn  brought  to  him  his  clothes  after  the  return  of  wit- 
ness from  the  penitentiary,  but  nothing  was  said  about  the 
Ilensloy  murder,  and  that  he  does  not  know  where  Riley  or 
Conners  is. 


AIMERICAN  CRIMINAL  REPORTS. 


Keenan  also  testified  that  in  the  afternoon  of  the  12th  oi 
November,  1879,  at  about  4  or  5  o'clock,  he  left  Ilabercorn's 
saloon  and  went  to  the  corner  of  Kinzio  street  and  Westein 
avenue,  and  between  G  and  7  o'clock  heboiu'ded  a  freight  train 
and  went  to  Oak  Park,  a  station  about  nine  miles  Avest  <n 
Chicago,  getting  there  about  10  or  11  o'clock  at  night;  that 
tlu'ce  other  men  (whose  names  he  gives)  were  with  him ;  that 
tliey  went  out  there  for  the  purpose  of  committing  a  burglary 
upon  a  house  about  a  mile  and  a  half  south  of  that  station ; 
that  on  arriving  in  front  of  the  house  they  made  no  attempt 
to  enter,  because  of  the  barking  of  a  fierce  dog  on  the  prom- 
ises, and  because  there  was  a  light  burning  in  a  windo\v  on 
one  side  of  the  house,  and  so  the}'  loitered  about  awhile  and 
then  returned  to  Chicago.  On  their  return,  after  reachin<>- 
Oak  Park,  they  cauglit  a  f  roiglit  train  there.  It  was  moving 
slowly,  and  they  got  on  about  4  o'clock  on  the  morning  of  the 
13th;  that  they  went  into  a  freight  car  through  the  end  doors, 
between  the  cars;  that  that  car  was  not  em})ty,  but  contained 
some  stove-pipe  and  some  bales  or  bundles  of  some  kind,  con- 
taining something  soft,  it  a[)[)eared  like;  it  was  dark  in  tlu> 
car;  they  staid  in  the  car  till  it  readied  (Miicago,  about  (!  or  7 
o'cloclc  in  tl»e  morning  (it  was  about  dayliglit),  and  they  got 
f»ff  on  Kinzic  street,  west  of  Western  avenue,  and  that  al'tci' 
getting  off  tluit  train  that  morning,  he,  Keenan,  came  d  jwii 
on  Ilalstead  street,  near  Jackson,  and  there  got  his  breaklast. 
The  Avitness  also  testified  that  he  loitered  aliout  tlie  city 
through  the  dav  of  tlie  l-'Uli,  and  or  that  nljAit  lie  lod-icd  at 
his  own  room  on  Harrison  street,  coming  in  about  S  or  !' 
o'clock,  and  that  on  the  1-ttli,  about  noon,  Avhen  ciossing  the 
river,  going  oast,  he  was  ai-rosted  on  the  bridge,  and  aCtci-u 
few  days'  confinemont  at  the  station  was  coinmittod  to  jail  upon 
two  charges  of  burglary,  and  has  been  a  pj'isoner  ever  since. 

In  corroboration  of  Koenan's  story  as  to  his  whoroabouts  on 
the  night  of  the  12th  and  the  nioi-ning  of  the  l.'Uluthe  tiaic 
of  the  mui'der),  he  produced  crodiblci  witnesses,  oni[)ioyeos  ol 
the  railroad  coni[)any,  who  testified,  in  substance,  that  freight 
trains  did  pass  on  the  railroad  leading  fi'om  Chicago  to  Oak 
Park,  towards  Oak  Park,  on  the  night  of  iho,  I'ith,  and  returned 
to  Chicago  through  Oak  Park  on  the  morning  of  the  l"th 
about  the  time  indicated  bv  his  testimony;  and  by  other  wit- 
nesses,  that  about  one  and  a  half  miles  south  of  Oak  i'ark,  on 


KEENAN  V.  THE  PEOPLE. 


the  roadside,  tliere  Avas  at  that  time  a  house  occupied  by  a 
family,  and  that  at  that  ])hice  there  was  then  kept  alierco  dog, 
mucli  yiveu  to  barking  in  a  threatening  manner  at  niglit;  and 
that  at  tiiat  time  there  was  an  invalid  in  that  family  whoso 
Avants  rctpiired  attention  frequently  through  the  night,  and 
that  it  was  the  custom  on  such  occasions  to  have  a  light  iu  the 
room  occM[)iod  by  the  invalid. 

To  fiirtlier  corroborate  this  story  of  Iveenan,  Mr.  Birdsall,  a 
clerk  in  the  freight  department  of  the  company  oi>crating  the 
railroad  in  quosiion,  testilied  that  in  June  or  July,  1881,  the 
attorney  employed  in  Keenan's  defense  called  upon  him  with 
a  memuraiulum,  and  at  his  request  witness  examined  the 
record  to  ascertain  the  contents  of  the  freight  cars  which  came 
in  through  Oak  Park  on  the  train  indicated  on  the  morning  of 
November  10,  ISTi',  and  that  to  do  so  he  had  to  search  books 
of  that  year  wliich  had  been  ])ut  away  for  safe-keeping;  that 
on  examination  it  was  fountl  tiiat  a  freight  car,  lunnbered 
r)(!l4,  of  that  train  contained,  among  other  freight,  twenty- 
eight  biigs  <if  rags  and  a  lotot"  household  goods  and  stove-pi])e, 
and  that  no  other  car  of  that  train  contained  I'ags  or  stove- 
pipe. On  ('■•OSS-examination  he  said  rags  were  a  very  conunon 
article  of  transportaticm.  Such  freight  comes  on  nearly  every 
train,  and  slove-pipe  is  freipiently  an  article  of  transportation 
of  tliat  I'oad.  Mv.  Jh-inkerlioil',  the  local  freight  agent,  and 
.Mr.  Waite,  tlie  tally  clerk,  gave  testimony  showing  the  same 
thing.  It  was  also  shown,  on  examination  of  Mr.  JJirdsall, 
tiiat  there  are  at  least  two  books  in  which  the  record  of  the 
contents  of  ari'iviug  cars  are  kej)t;  that  oiu^  of  those  is  called 
the  delivery  book,  and  that  this  book  was  kei)t  in  the  delivery 
ollice,  accessible  to  almost  anybody  wishing  to  examine  it,  and 
geneially  oi)en  to  the  public  for  inspection. 

To  show  that  Keenan  did  not  return  that  morning  from  Oak 
Park  in  car  number  "MJU,  and  that  his  story  and  its  corrobora- 
tioiv  were  manufactured,  the  ])i'osecution  called  Charles  IJoe- 
decUei',  who,  in  Novend)er,  I87t),  was  night  watchumn  aiul 
switchman  at  Tark  station,  which  is  a  short  distance  further 
east  than  Western  avenue,  where  Keenan  says  he  got  off  the 
ti-ain  on  tiio  morning  of  the  loth,  and  Frank  C.  AVaite,  the 
custodian  of  the  seal  record  kept  at  the  State  street  station,  which 
is  some  two  mll^.,-  jVu'ther  east  than  Park  station,  and  Mr. 


442 


AMERICAN  CRIMINAL  REPORTS. 


Brinkerhoff,  the  local  freight  agent  at  Chicago,  who,  after  au 
examination  of  the  seal  I'ecords  of  the  company,  testified,  in 
substance,  that  the  railroad  company  had  at  that  time,  and 
now,  a  mode  of  scaling  the  do<>rs  of  freight  cars  in  such  a 
manner  that,  in  their  opinion,  the  door  so  sealed  could  not  be 
opened  and  closed  again  Avithout  ^naking  the  violation  of  the 
seal  apparent  to  an  inspector,  and  also  showing  that  the  cars 
of  the  train  which  brought  in  on  that  morning  this  car  num- 
ber 5G14  were  duly  inspected  at  Park  station,  and  also  at  the 
station  on  State  street,  and  the  result  of  the  inspection  then 
and  there  Avas  entered  on  their  seal  records,  and  that  from 
those  seal  records  it  appeared  that  both  at  Park  station  and  at 
the  State  street  station,  the  end  doors  of  the  car  numbored 
5014  Avere  both  scaled  Avith  a  tin  strip,  in  the  manner  described 
by  the  Avitnesscs,  and  that  the  seals  Avere  on  the  doors  on  both 
ends  of  the  car  in  good  order  on  the  arrival  of  the  train  at 
both  of  these  stations. 

On  this  evidence  it  became  absolutely  necessary  tliat  the 
jury  should  determine  Avhothcr  Ifabercorn  or  Kconan  had 
spoken  the  truth  in  tlie  matters  Avherein  their  testimony  is  at 
variance.  The  jurv  found  tlie  prisoner  guilty,  and  thereby  nec- 
essarily found  that  his  (Keenan's)  story  of  his  trip  to  Oiik 
Park  Avas  manufactured  and  false.  It  cannot  be  known  that 
they  would  have  so  found  in  the  absence  of  the  testimony  <jf 
the  three  Avitnesses,  Birdsall,  Waite  and  Brinkerliolf,  sliowing 
that  they  all  Avere  familiar  Avith  this  mode  of  sealing  cars,  and 
that,  in  their  opinion,  the  sealing  was  of  sucli  a  character  that 
the  car  could  not  be  opened  and  closed  Avitiiout  making  tlio 
A'iolation  of  the  seal  ])lain  to  the  ins[)octor.  This  evicU'uce,  it" 
correct,  seems  most  forcibly  to  lead  to  the  belief  that  Keenan's 
story  in  tliis  regard  was  false,  and  entirely  manufactured. 

After  the  verdict  came  the  motion  for  a  new  triah  On  the 
hearing  of  that  motion  allldavits  Avere  read  of  Frank  C.  Waite, 
the  employee  of  the  railroad  company  who  on  tlie  trial  had  testi- 
lied  to  the  security  of  this  mode  of  sealing  cars,  and,  also,  of 
Frank  ]\rcQuaid,  a  friend  of  Keenan,  showing  that  after  the 
trial,  and  on  the  8th  of  September,  18S1,  JVIcCjuaid  Avent  Avith 
]\rr.  Sturck,  one  of  Keenan's  attorneys,  and  e.xperimented  upon 
cars  fastened  and  sealed  precisely  as  Avas  car  5(514  when  it  came 
into  Chicago  on  tlie  morning  of  the  13th  of  November,  187t), 


KEENAN  V.  THE  PEOPLE, 


443 


and  found  that  the  same  could  be  opened  and  closed  leaving- 
the  seals  in  apparent  good  order.  Tlicse  affidavits  also  show 
that  like  experiments  wei'e  made  by  Mr.  Waite  in  tlie  pi'csenco  ' 
of  Mr.  Shiunan,  Mr.  Storck  and  other  gentlemen,  Avitli  like  re- 
sult, and  Mr.  AVaite  swears  that  by  such  demonstrations  he 
ascertained  tliat  "it  is  an  easy  thing  to  open  the  end  window 
or  door  of  a  box  freight  car  which  is  secured  or  fastened  with 
a  tin  seal,"  as  described,  "  without  breaking  or  in  any  way  in- 
juring or  imi)airing  the  seal,"  and  that  a  car  door  of  tliis  kind 
sealed  in  tliat  way  can  easily  bo  opened  and  the  car  entered, 
and  after  coming  out  the  door  can  be  closed  witliout  injmy  to 
the  seal,  or  showing  to  an  inspector  in  any  way  tiiat  the  car 
hiis  been  opened,  unless  ho  actunlly  tried  the  door  or  window. 
Mr.  Waito  swears  tluit  lie  is  familiar  with  this  mode  of  fasten- 
ing, and  understands  what  he  is  speaking  about,  and  tluit  if  a 
new  trial  l)e  gi'anted  he  will  so  testify. 

Tlio  affidavit  of  an  expert  was  also  presented,  tending  to 
sliow  that  the  notes  i)ro(luce(l  as  i>iven  to  Ilabercorn  bv  Keenan 
in  tli<^  jail  are  probably  forgeries,  and  not  in  the  handwriting 
of  Keenan. 

Xotliing  Avas  presented  on  the  hearing  of  the  motion  tending 
to  break  the  force  of  tliese  alKiUivits,  and  no  reason  is  sng- 
gested  why  tliey  are  not  entitled  to  belief.  The  trutliiulness 
of  Waite  is  conceded  by  the  prosecution,  wlio  produced  liim  as 
a  witness.  If  it  be  not  true  that  tliese  seaknl  cars  can  be  thus 
opened  without  detection  in  that  way,  it  is  a  fact  easy  of  proof, 
"We  must  believe  it  is  true.  If  this  be  so,  it  is  plain  that  Kee- 
nan (lid  not  have  a  fair  trial  before  that  jury.  Ilis  story  had 
at  the  trial  to  bo  Aveighod  against  that  of  Ilabercorn  by  the 
jury,  Avhile  under  the  belief  that  it  Avas  impossible  that  this  car 
could  have  been  opened  and  closed  in  the  Avay  he  stated  Avith- 
out  immediate  discoA'ery  of  the  fact  that  the  car  had  been 
oponed.  This  of  itself  Avas  decisive  against  the  trutli  of  liis  story. 

The  motion  for  a  neAV  trial  ought  to  have  been  granted.  It 
Avas  error  to  deny  it.  For  this  error  the  judgment  of  convic- 
tion is  reversed,  and  the  cause  renuuuled  for  a  new  trial. 

Jvdijment  reversed. 

Walker,  Sueloox  and  Scuolfield,  JJ.,  dissent. 


Note. —  Tlio  decision  in  the  aliovo  v\wv  will  coninicnd  itself  to  the  pinfes- 
sion  08  eminently  just  under  its  own  peculiar  circumstances.    The  witness, 


U4: 


AMERICAN  CRI5IINAL  REPORTS. 


on  the  trial  of  the  cause,  testified  to  a  conclusion  which  he  himself  believed 
to  he  true,  derived  from  his  daily  observations  in  the  usual  and  ordinary 
course  of  his  busineas.  He  had  not  experimented  as  to  whether  the  car 
doors  could  be  opened  without  appreciable  injuiy  to  the  seals,  and  in  this 
respect  the  case  ditlers  from  tlie  one  wherein  a  witness  would  make  affidavit 
that  he  had  knowingly  testified  falsely  upon  the  trial. 

See  the  following  recent  cases  wliich  sustain  the  views  expressed  in  the 
nia.jniity  ojtinion:  Ileskeiv  v.  The  f^'ate,  14  Tex.  App.,  COO;  'The  State  v.  Uui-- 
tis,  77  Mo,,  207. 


State  v.  Dame. 

(CO  N.  H.,  479.) 

Nuisa;;ce  :  Disorderly  house  —  Character  of  its  frequenters. 

1.  Nlisance  —  Immatkuial  AVKiniENT. —  It  is  necessary  to  prove  mattm-  of 

descripti«m  only  where  the  averment,  of  which  the  descriptive  matter 
forms  a  part,  is  material. 

2.  Same  — Dis()Ri>KRi,v  housk  —  Chauacteu  ov  those  who  frequent  it.— 

The  indictment  being  for  keeiniig  a  disorderly  house,  an  aveniicnt 
therein  that  "  in  the  sjiid  house  c<'rtiiin  evil-disposed  jiersons,  as  well 
men  as  women  of  evil  Jiame,  lame  and  conversation,  to  eonu'  together," 
etc.,  is  immaterial  — miglit  be  rejected  as  sur^jlusaye,  and  it  was,  lliere- 
fore,  uimecess^uy  to  prove  it. 

Cojxiand  t5  Edtjerhj,  lor  tlie  di'tVtuliuit. 

I'ke  Attovney-Gcnert'l  and  Solicitor,  for  the  state. 

Stanley,  J.  Tlie  validity  of  the  defendant's  exception  de- 
pends on  \\'Iietlier  there  was  a  variance  between  the  alleviations 
in  the  indictment  and  the  proof.  The  iiHlictnient  was  for 
keeping  jt  disoiderly  lioiise;  and  it  contained  an  avernient  lliat 
'"in  the  said  lioii.se  certain  evil-disposed  [x-i'sons,  as  wel'  men 
as  women,  of  evil  name,  fam(>  and  conveisatioii.  to  coitic  to- 
gether, did  caTise  and  procure,  and  the  said  ]»cinoiis  in  the  said 
lionse,  at  unlawful  times,  as  well  in  the  night  as  in  tiic  day.  on 
the  days  and  times  aforesaid,  there  to  lie  and  remain,  drinlvini;. 
ti[)pling,  cursing,  swearing,  «]uarreling  and  otherwise  iiiisheiiav- 
ing  themselves  unlawfully,  did  permit  and  suH'er."  If  lliis 
averment  was  unnecessary,  the  reipiest  was  [tropei'ly  rel'iiscd. 
It  is  necessary  to  prove  matter  of  d('scri})tion  only  when  the 
averment,  of  which  the  descriptive  matter  forms  a  part,  is 
material.  Bish.  Cr.  Prac.  sees.  4S4,  IST;  Stat)'  r.  (ojip,  V>  N. 
ir.,  212;  State  e.  Ballr,/,  ;31  X.  H.,  r>21;  AV.r  >'.  .)/,/>/,  I  Doug,, 
193;  Hex  v.  rij>pctf,  IT.  R,  2?,r>. 


STATE  V.  DAME. 


445 


Ecjccting  tho  averment  recited,  and  the  indictment  charges, 
with  proper  allegations  of  time  and  place,  tlic  keoj)ing  of  a  dis- 
orderly lionso,  to  the  great  injury  and  common  nuisance  of  all 
tlie  peaccal)]e  citizens  of  tho  state  there  residing,  inliahiting  and 
passing,  contniry  to  the  statute,  etc.  The  olfcnse  is  keei)ing  a 
disorderly  house.  The  allegation  rejected  is  of  facts  which  go 
to  show  that  tho  general  cliarge  is  well  founded,  or,  in  other 
words,  a  statement  of  the  evidence  upon  which  tho  charge  is 
based.  Hawkins  says  that  "an  indictment  chiii'ging  a  man 
witli  a  nuisance  in  respect  of  a  fact  Avliich  is  lawful  in  itself,  as 
the  ei'ecting  of  an  inn,  etc.,  and  only  becomes  unlawful  from 
the  particular  circumstances,  is  insuUicient,  nnless  it  sot  forth 
some  circumstances  which  make  it  unlawrul  in  its  own  nature, 
as  keeping  a  bawdy  house.  2  Hawk.  P.  C.  (ed.  1824),  311.  It 
is  no  more  necessary  to  allege  the  facts  which  go  to  show  it  to 
bo  a  disorderly  house,  than  it  is  to  allege  who  are  disturbed 
thereby,  and  this,  it  is  said,  is  unnecessary.  ICinfj  v.  P('oj)/e,  S3 
N.  Y.,  587.  In  tho  case  of  a  common  scold,  it  is  not  necessary 
to  prove  the  expressions  used.  It  is  sutlicient  to  pi'ovo  generalh^ 
that  she  is  always  scolding.  J'Anmii  i\  Stiuirt,  1  T.  II.,  748, 
7r)4:  Rexv.  ^';//,"Russ.  &  U.,  431;  Clavhv.  IW!a/>},  2  Atlc,  330; 

1  IJuss.  Cr.,  43(1;  J?ex  v.  Rof/icr,  1  B.  &  C,  272;  l^ex  r.  Bivon, 
10  Mod.,  32(1;  L\'.v  v.  Mason,  1   Leach  (4th  ed.),  487,  401,  403; 

2  Hawk.  P.  C,  ch.  25,  sec.  50;  Dav.  Prec.  Ind.,  140,  108;  Shtto 
r.  BaUrij,  21  X.  IT.,  343;  !^t<tfe  v.  Peh'oo,  43  X.  II.,  270;  State 
v.  Do'C'-r.-t,  45  X.  II.,  543,  515.  The  indictment  is  sulHcient  if 
it  set  out  so  much  of  fact  as  to  make  the  criminal  nature  of 
what  is  charged  against  the  defendant  ap[)ear.  If  the  thing 
against  which  the  indictm<>nt  is  aimed  is  not  a  nuisance  in  itself, 
but  becomes  so  only  by  reason  of  particular  circumstances,  this 
special  matier  must  1h»  shown  (2  Pish.  C.  L.,  sec.  813^  but  tho 
n\\)  is  otherwise  if  the  thing  is  m  itself  a  nuisance.  The  avcr- 
ni(H\t  referred  to  might  have  been  rejected  as  surplusage.  It 
was,  Iheri'foro,  not  necessary  to  prove  it. 

Judgment  on  the  verdict. 

Tt.AKK,  .1,,  did  not  sit;  tho  others  concurred. 

N'vnK,  —  Kvidonoe  of  general  n^putation  of  a  house  is  admissible  as  tending 
to  show  the  fact  that  it  is  kept  as  a  bawdy  house.  The  Territory  v.  Stone, 
2  Dftk.,  155. 


44C 


AMERICAN  CRIMINAL  REPORTS. 


In  rb  Rolfs,  Petitioner. 

(30  Kan.,  738.) 

Nuisance  :  Ordinance  —  Habeas  corpus  —  Trial  by  jury  —  Appeal. 

1.  The  police  judge  of  the  city  of  Leavenworth  has  exclusive  jurisdittion 

over  all  oiTcnses  against  the  city  ordinances,  and  the  city  1ms  iK)\vor  to 
jninish  them  by  fine,  imprisonment,  or  lal)or  on  the  streets. 

2.  The  keeping  of  a  hog-peii  may  bo  a  nuisance,  and  as  such  a  violation  of 

the  criminal  law,  and  punishable  under  the  statute. 

3.  Wliere  a  party  is  held  under  process  issued  upon  any  final  judgment  of  a 

court  of  competent  jurisdiction,  the  inquiry  in  habeas  corpus  is  limited 
to  the  validity  «f  the  judgment,  or  to  the  question  whetlter  it  is  stayed 
or  has  spent  its  force;  more  irregularities  will  not  justifj'  a  di.schoi-ge. 

4.  The  legislature  cannot  deprive  a  party  of  his  right  to  a  ti'ial  by  jury,  in  a 

criminal  charge,  before  a  jtistice  of  the  peace.  Such  trial  must  be  given 
cither  there  or  on  appeal,  the  constitution  guarantying  a  trial  by  jury 
in  all  prosecutions, 

5.  There  Ixiing  no  specific  provision  in  the  charter  of  the  city  of  Leaven- 

worth concerning  appeals,  where  the  fine  is  $20  or  less,  such  right  may 
be  foimd  under  the  laws  regulating  the  proceedings  in  justices'  coiu-ts  in 
criminal  cases,  and  the  petitioner  is  entitled  to  his  appeal  in  this  ca.se 
upon  filing  a  proper  bond. 
C.  The  appeal  being  formally  denied  by  the  police  judge,  the  failure  to  fur- 
nisli  the  bond  should  not  i>rejudice  the  petitioner,  if  he  supply  the  omis- 
sion promptly. 

At  Chambers. 

77.  T.  Green  and  W.  Green,  for  petitioner. 
il/.  3nies  Moore,  for  respondent. 

Brkwer,  J.  This  is  an  application  in  habeas  corpus  brought 
by  the  petitioner,  alleging  that  he  is  illegally  restrained  by  one 
W.  D.  Shallcross,  marshal  of  the  city  of  Leavenworth.  The 
respondent  returns  that  he  holds  the  petitioner  in  custody  by 
virtue  of  a  commitment  issued  by  the  police  judge  of  the  city 
of  Leavenworth,  reciting  u  conviction  of  the  petitioner  on  a 
charge  of  locating  and  maintaining  a  nuisance,  and  a  sentence 
to  pay  a  fine  of  $10  and  costs.  Upon  tlie  heai'ing  before  nic, 
the  facts  of  the  case  have  been  fully  developed,  and  a  nuinbor 
of  (picstions  presented  and  argued.  As  a  sulKcient  statoment 
of  the  fact.?,  it  may  be  siiid  that  the  petitioner  was  brouglit 
befoi'e  the  police  judge  on  a  charge  of  locating  and  maintuiu- 
ing  a  nuisance,  the  particular  nuisance  complained  of  being  a 


IN  RE  ROLFS,  PETITIONER. 


447 


hog-pcn ;  that  upon  the  calling  of  the  case  for  trial  he  challenged 
the  surticicncy  of  the  complaint,  which  challenge  was  overruled. 
He  entered  a  plea  of  not  guilty  and  demanded  a  trial  by  jury, 
which  demand  was  also  refused.  The  case  was  tried  before 
the  police  judge,  and  the  petitioner  found  guilty  and  sentenccil 
to  pay  a  fine  of  $10  and  costs.  All  these  facts  appear  on  tlie 
docket  of  the  police  judge.  A  commitment  was  issued  on  the 
sentence  to  the  city  marslial,  who  placed  the  petitioner  in 
the  city  jail,  and  has  since  compelled  him  to  work  on  the  pub- 
lic streets.  Immediately  after  the  conviction  the  petitioner  de- 
manded an  appeal  to  the  district  court,  which  was  refused 
during  the  same  day.  For  the  purpose  of  prosecuting  pro- 
ceedings in  error  in  the  district  court,  he  tendered  a  bond  to  the 
police  judge,  ■with  sufficient  securities,  which  bond  the  police 
judge  declined  to  receive  or  approve,  or  in  any  manner  to  stay 
the  o]ieration  of  the  sentence.  This  states  all  the  facts  nec- 
essary to  present  the  questions  discussed  by  counsel,  and  in 
reference  to  many  of  them  I  have  little  doubt,  and  shall  simply 
state,  in  a  word,  the  propositions  which  I  think  dispose  of  those 
questions: 

1.  Wliere  a  party  is  held  under  process,  issued  upon  any  final 
judgment  of  a  court  of  competent  jurisdiction,  the  incpiiry  in 
habeas  corpus  is  limited  to  the  question,  was  the  judgment  void, 
or  has  it  been  stayed,  stqierseded,  or  otlierwise  spent  its  force. 
No  mere  errors  or  irregularities  in  the  proceedings  will  justify 
a  discharge.  Code  Civil  Proc,  §  071,  par.  2;  E.v  parte  Pltil- 
lips,  7  Kan.,  4S;  Ex  parte  Nije,  8  Kan.,  100;  In  re  Scrafonl,  21 
Kan.,  735;  In  re  Pettij,  22  Kan.,  477;  In  re  GohhmUh,  24 Kan., 
757. 

2.  The  police  judge  lias  exclusive  original  juris:liction  over 
all  offenses  against  the  ordinances  of  the  city.  Citv  Charter, 
§51. 

3.  The  ci'v  has  power  to  punish  any  criminal  violation  of  its 
ordinances  ly  line,  conlinement  in  the  city  prison,  or  lal)or  on 
the  streets.  Chapter  17,  ^§  417,  418,  410,  Dassler  and  Shafer's 
Compilation  of  City  Ordinances,  i;]2.  These  sections  are  within 
the  powers  conferred  by  article  3,  §  11,  par.  37,  of  the  act  in- 
corporating cities  of  the  first  class,  passed  in  1S81,  and  amended 
by  chapter  34,  Laws  1SS;>,  and  do  not  trespass  upon  any  con- 
stitutional provision.    For  it  is  undoubted  that  the  legislature 


us 


AMERICAN  CRIMINAL  REPORTS. 


may  punish  any  criminal  violation  of  its  statutes  by  confine- 
ment and  hard  labor,  and  may  likewise  delegate  to  municipal 
corporations  similar  powei's  in  reference  to  violation  of  their 
ordinances.  1  Dill.  Mun.  Corp.  (3d  ed.),  §§  411,  428,  Avith  au- 
thorities cited  in  the  notes. 

4.  The  keeping  of  a  hog-pen  may  be  a  nuisance,  and,  as  such, 
a  violation  of  criminal  law;  one  which  was  punishable  as  a 
nuisance  at  the  common  law,  and  is  punishable  under  our  stat- 
utes.    Steph.  K  P.,  §§  2350,  2303;  City  Charter,  §  11,  par.  11. 

5,  Said  paragra]>h  11  authorizes  the  city  council  "  to  make 
regulations  to  secure  the  general  health  of  the  city;  to  prevent 
and  remove  nuisances;  and  to  make,  prescribe  and  enforce 
regulations  for  the  clearing  and  kee[)ing  in  order  of  all 
slaughter-houses,  ...  or  other  places  where  offensive 
matter  is  kept  or  permitted  to  accumulate."  Under  this  grant 
of  power  the  city  council  may  ]>rovide  for  punishment  by  fine 
and  imprisonment  of  any  party  guilty  of  a  nuisance,  which, 
like  the  keej)ing  of  a  hog-pon,  may  bo  dangerous  to  the  public 
health.  1  Dill.  :N[un.  Corp.  (3d  ed.),  §§  375,  370,  and  cases  cited 
in  the  notes. 

Passing  by  these  general  propositions,  which,  to  my  mind, 
are  clear,  and  which  dispose  of  many  of  ttio  questions  dis- 
cussed by  counsel,  I  come  to  the  only  matter  Avhich  presents 
any  dilficult}'  or  causes  me  any  embarrassment.  That  question 
may  be  thus  stated :  The  constitution,  in  its  bill  of  righlf?  (soctioii 
5),  provides  that  "the  right  of  trial  by  jury  shall  be  inviolate," 
and  section  10,  that  "in  all  prosecutions  the  accused  shall  be 
allowed  to  appear  and  defend  in  person  or  by  counsel;  to  de- 
mand the  nature  and  cause  of  the  accusation  against  him;  to 
meet  the  witnesses  face  to  face;  and  to  have  conpulsory  proc 
ess  to  compel  the  attendance  of  witnesses  in  his  behalf;  and 
a  speedy  public  trial  by  an  impartial  jur}'  of  the  county  or 
district  in  Avhich  the  offense  is  alleged  to  have  been  committed." 
Again,  the  maintaining  of  a  public  nuisance,  Avhich  is  of  a 
character  to  endanger  the  public  health,  is  a  criminal  act,  and 
a  prosecution  therefor  is  a  prosecution  for  a  criminal  olfense, 
and  not  a  proceeding  to  collect  a  debt  or  enforcement  of  a 
mere  municipal  regulation,  and  therefore  is  to  be  controlled  by 
the  ordinary  rules  concerning  criminal  prosecutions.  ]Veif.~>  I- 
V.  Concordia,  14  Kan.,  4GG.    Again,  the  city  charter,  sec.  53, 


IN  RE  ROLFS,  PETITIONER. 


449 


authorizes  summary  trials  by  the  police  judge,  without  a  jury, 
of  all  violations  of  city  ordinances,  and  by  section  00  denies 
an  appeal  unless  the  fine  assessed  exceeds  $20,  or  the  imprison- 
ment one  month.  ITence,  the  petitioner  having  been  lined 
only  $10,  has,  notwithstanding  his  demand  for  a  public  trial 
by  an  impartial  jury  of  the  district,  been  convicted  of  a  crim- 
inal offense  and  punished  in  defiance  of  the  constitutional 
guaranty.  Can  such  a  judgment  be  sustained  ?  Was  he  con- 
stitutionally entitled  to  a  jury?  If  so,  was  the  deprivation  of 
tliis  constitutional  right  a  mere  irrefjularitv,  which  did  not 
avoid  the  judgment,  and  is  not  subject  to  review  in  haheas  cor- 
pus?  In  the  case  of  C/fi/  of  Fmpoi'id  v.  Volmer,  12  Kan.,  022, 
it  was  held  by  the  supreme  court  that  a  summary  trial  without 
a  jury,  in  a  municipal  court,  could  be  sustained  if  the  defend- 
ant lia<l  an  appeal,  clogged  by  no  unreasonable  restrictions,  to 
an  iippcllivte  court  in  which  he  had  a  right  of  trial  l)y  jury. 
That  is  as  far  as  the  decisions  in  this  state  have  gone.  Hut  the 
diiim  is  now  made  that  a  piirty  may  be  subjected  to  a  summary 
trial  before  a  police  judge  for  a  violation  of  a  city  ordinance 
involving  an  act  of  a  criminal  nature,  without  any  appeal  to  a 
liiglier  coui't,  and  this  notwithstanding  the  constitutional  guar- 
;inty  of  a  ])ublic  trial  by  an  impartial  jury  of  the  district 
where  the  otfenso  is  charged  to  have  boon  committed. 

I  cannot  assent  to  this  claim;  and  while  I  may  not  be  able 
in  the  I)rief  time  at  my  comnumd  to  state  all  the  reasons  which 
control  my  judgment,  I  shall  endeavor  to  state  some  of  the 
more  important.  The  constitutional  provision  that  the  right  of 
trial  by  jury  shall  be  inviolate  is  conimon  to  many  constitu- 
tions, and  has  received  frequent  interpretations.  It  means  that 
a  jury  trial  is  preserved  in  all  cases  in  which  it  existed  prior 
to  the  adoption  of  the  constitution.  It  does  not  extend  the 
right  of  trial  by  jury;  it  simply  ])reserves  it.  It  remains  in- 
violate, that  is,  not  disturbed  or  limited.  Where  this  is  the 
only  provision,  as  in  some  constitutions,  summary  convictions 
in  petty  offenses  without  appeal  have  been  sustained;  and  this 
upon  the  theory  that  at  common  law,  or  in  the  state  prior  to 
the  adoption  of  the  constitution,  such  convictions  were  author- 
ized. See,  specially,  the  case  of  Biji't's  v.  Com.,  42  Pa.  St.,  89, 
in  which  is  a  very  clear  and  foi'cible  discussion  of  the  subject 
l)y  Strong,  J.  But  our  constitution  contains  the  further  pro- 
VoL.  IV— 20 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


^-^^-41^ 


1.0    ^^  ^ 


I.I 


u 
lit 


Photographic 

Sciences 

Corporation 


23  WIST  MAIN  STRUT 

WIISTIR,N.Y.  14SM 

(716)S72-4S03 


4>60 


AMERICAN  CRUHNAL  REPORTS. 


vision  that  in  all pt'osccntions  the  accused  shall  be  entitled  to  a 
speedy  public  trial  by  ixn  impartial  jury,  Kow,  the  Pennsyl- 
vania coustitution  reads  that  in  prosecution  by  indictment  oi- 
infonnation  the  accused  shall  be  entitled  to  a  speedy  publi(^ 
trial  by  an  imparti.'il  jury.  And  of  similar  import  is  the  })ro- 
vision  in  other  constitutions.  Obviously,  thi!4  rcsti'icts  the 
right  of  jury  trial  to  cases  which  at  common  law  were  prose- 
cuted by  indictment  or  information,  and  these,  as  is  well 
known,  were  offenses  of  the  higher  grade,  while  ordinary 
petty  offenvses  were  tried  upon  a  simple  complaint.  Such  a 
constitutional  provision  is  not  as  bi'oad  as  ours,  which  says,  iv 
all  proHecutiotis.  I  know  that  there  is  to-day  nuich  hostih* 
criticism  on  juries,  a  criticism  intcnsilied  by  the  not  infrecpK^nt 
failure  of  juries  to  ignore  prejudice  and  res|)ond  to  the  de- 
mands of  absolute  justice.  But  whatever  theories  I  may  have 
individually  as  t<»  the  proi)riety  of  jury  trials,  or  what  notions 
I  may  have  of  the  wisdom  of  the  system,  I  may  not  as  an 
officer  of  the  law  disregard  its  j)Iain  i>rovisions.  Ifti  h,f  M'i'ipio 
4'iit  IS  as  to  a  judge  the  beginning  and  tlui  end,  the  <tli)li<(  and 
omega  of  official  duty,  I  find  in  the  constitution  a  gnaraiity 
of  a  jury  trial  hi  all  prosmut'ionH.  That  constitution  is  tlu; 
organic  law,  binding  upon  Ic^gislaturcs  and  courts,  ov(;rriding 
all  conflicting  statutes,  and  is  tlie  final  rule  and  measure  of 
rights  and  powers.  Tliat  wiiich  a  legislature?  nuiy  not  do 
directly,  it  may  not  do  iudireetly.  It  may  n(»t  deprive  a  ])arty 
charged  with  a  criminal  act  of  his  constitutional  right  to  have 
the  truth  of  that  charge  (hrtermined  by  an  impailial  jury  of 
the  district.  It  could  not  sul>ject  a  party  ti>  trial  befoiv  a  jus- 
tice of  the  peace  <»n  a  criminal  diargi?  witluMit  a  right  of  triiil 
by  jury,  either  there  or  on  api)eal.  No  more  can  it  authorize 
a  municipal  coi'poration,  one  of  its  creations,  to  j)uuish  a  party 
for  a  criminal  matter  witix<mt  in  s«)m(Mvay  sec^n-ing  to  him  a 
jury  trial.  So  long,  therefore,  as  the  fnndamental  law  contains 
the  guanmty  which  it  do«js,  I  tliiidc  n<»  |)arty  can  be  subje(;t<Ml 
to  a  pr(»secution  f<»r  an  act  i/f  a  criminal  nature,  whetlier  tiiat 
prosecution  lK>brfnight  by  the  state  tliroctly  or  any  por|)oi'ation 
created  by  the  state,  without  in  some  way  and  before  some 
tribunal  being  secure<l  an  opportunity  of  having  the  trntli  of 
that  charge  inrpjired  into  by  an  impartial  jury  of  the  district. 
A.  distinction  sliould  bo  noticed  here.    A  prosecution  which 


IN  RE  ROLFS,  PETITIONER. 


451 


of 


involves  nothing  of  a  criminal  nature,  as,  for  instance,  where 
one  is  charged  with  acting  as  an  auctioneer  without  a  license, 
in  violation  of  a  city  ordinance  (such  an  ordinance  heing  a 
inere  municipal  rcg;dation),  is  not  a  criminal  offense  in  the  true 
legal  sense  of  the  term.  As  to  such  proceedings  the  constitu- 
tional guaranty  may  not  be  a))plicable,  but  where  the  charge 
is  of  an  act  like  the  one  at  biir,  criminal  at  counnon  law, 
criminal  in  its  nature,  and  an  offense  against  the  public,  the 
constitutional  guaranty  is  applicable;,  and  cannot  be  ignored 
or  disregarded, 

in  I  Dill.  Mun.  Corp,  (.^d  ed.),  §  433,  the  author  thus  clearly 
states  the  distinction  I  have  been  sutjfjestinfl: :  "One  of  the 
(juestions  which  most  frccpiently  arises  is  whether  the  defend- 
ant is  entitled  ♦  >  a  trial  by  jury,  and  the  cases  on  this  subject 
cannot  all  be  rc(!onciUMl,  The  general  ])rinciples  applicable  to 
its  solution,  however,  are  plain.  Violations  of  municipal  by- 
laws pr(>per,  such  as  fall  within  the  description  of  municipal 
police  regulaticjns,  as,  foi'  exam|)le,  those  concerning  markets, 
streets,  water-works,  city  otllces,  etc.,  aiul  which  relate  to  acts 
and  omissions  that  are  not  eud»raced  in  the  general  criminal 
legislation  of  the  state,  the  legislature  may  autliorize  to  be 
|)rosccuted,  in  a  summary  mii.nnei',  by  and  in  the  name  of  the 
corporation,  and  need  not  i)rovide  for  a  trial  by  jury.  Such 
acts  and  omissions  are  not  crimes  or  misdemeanors  to  which 
the  constitutional  rights  of  trial  by  jury  extetul," 

And  again:  "Where  the  actor  omission  sought  to  be  pun- 
ished by  imi)risonment  under  a  municipal  ordiiumce  is  in  its 
nature  not  peculiai'ly  an  offense  against  the  municipality,  but 
rather  against  the  public;  at  large,  where  it  falls  within  the 
l(*gal  or  counnon  law  noti(m  of  a  Ciime  or  misdemeanor,  and 
especially  where,  biding  of  such  a  nature,  it  is  emb'-aced  iti  the 
(Viminal  (^xle  of  the  state,  there  the  constitutional  guaranties 
int(in(led  to  siscure  the  lilnM-ty  of  the  citi/.en,  and  the  right  to 
a  trial  by  jury  cannot  be  ('vaded  by  the  nature  of  the  powers 
vested  in  the  municipal  corporation  or  the  nature  of  the  juris- 
diction conferred  up(m  the  municipal  courts," 

l>ut  the  ((uestion  now  occurs  whether  the  defendant  is,  by 
tlie  statutes,  denied  an  appeal  to  the  district  court.  There  is 
('(M'tainly  no  express  denial;  but  it  is  claiuunl  that  no  appeal  is 
giv(uj,  and,  therefore,  that  the  summary  conviction  before  the 


452 


AMERICAN  CRIMINAL  REPORTS. 


police  judge  is  final.  Section  GO  of  the  charter  provides  that. 
"  in  all  cases  before  the  police  judge  wherein  the  line  assessed 
exceeds  >y20,  or  the  inij)risonnK'nt  one  month,  an  appeal  may 
be  taken  by  the  defendant."  This  is  tlie  single  provision  of 
the  charter  in  respect  to  appeals.  By  implication,  and  upon 
the  rule,  crpressio  nnius  exduslo  alterhifi,  it  is  contended  tlitit 
an  appeal  in  a  case  like  the  one  at  bar  is  denied,  the  line  being 
under  $20.  Conceding  this  to  be  a  fair  construction  of  tlio 
section,  if  there  wore  notliing  else  toucliing  on  the  matter,  yet. 
as  such  a  construction  would  overthrow  some  of  the  powois 
conferred  by  otlier  sections  of  the  charter  upon  tlie  ])olici' 
judge,  and  is  therefore  to  be  avoided,  if  })ossible,  I  tliinlc  a  way 
of  escape  from  the  difficulty  may  be  fouml  witiiout  resorting' 
to  any  judicial  legislation.  Section  0.">  provides  that,  "in  iill 
cases  not  specilically  herein  provided  for,  the  process  and  |)i«)- 
ceedings  shall  be  governed  b}-  the  laws  regulating  ])rooeodin^s 
in  justice's  court  in  criminal  cases."  Now,  there  is  no  spei-ilic 
provision  in  the  city  charter  concerning  appeals  in  cases  wIkmc 
the  line  is  i?iio  or  less.  They  are  neither,  in  terms,  granted 
nor  denied.  The  only  denial  claimed  is  one  by  implication, 
and  from  the  silence  of  the  charter.  There  being  no  spi'cilic 
provision,  1  think  we  may  fairly  look  to  the  statute  concci'iiin^- 
proceedings  in  justices'  courts  in  criminal  cases.  Here  we  find 
appeals  allowed,  but  under  somewhat  ditferent  conditions,  and. 
in  that  respect,  establishing  a  dilFerent  rule  from  that  pre- 
scribed by  the  charter  in  the  cases  to  which  it  applies  Tliat 
statute  controls  this  case,  provides  an  appeal,  and,  under  tlie 
rule  laid  down  in  ('itij  <>f  Knqxn'la  v.  J^o/jihr,  ,suj>ra,  auatams 
the  validity  of  the  [lowers  conferred  upon  the  police  judge.  I 
think,  therefore,  without  any  judicial  legislation,  it  can  prop 
erly  be  held  that  the  petitioner  was  entitled  to  an  appeal;  and 
ii  entitled  to  an  appeal,  and  if  he  has  taken  the  proper  st(>ps 
to  secure  such  a[>peal,  the  judgment  and  sentence  must  be  held 
to  have  been  vacated,  and  he  thereaftei"  hn properly  held  in 
custody.  It  is  true  the  testimony  fails  to  show  that  an  a))|ieiil 
bond  was  tendered  within  time,  but,  as  an  apjieal  was  foi'ni.illy 
denied  by  the  police  judge,  I  think  the  petitioner  should  not 
be  prejudiced  l>y  such  omission,  jn-oviding  one  be  tcn«lei'ed 
immediately.  My  conclusion,  therefore,  is  that  the  petitioner 
IS  entitled  to  a  discharge,  upon  tendering  an  appeal  bond,  with 


THE  PEOPLE  V.  MULLER.  45?, 

suflBcient  securities,  conditioned  according  to  the  requirements 
of  the  justices'  act  in  criminal  cases. 

Tlie  conclusion  which  I  have  announced  has  been  readied 
with  some  embarrassment  and  considerable  doubt,  and  if  tlie 
city  desires  to  have  the  opinion  of  my  associates  on  the  supreme 
bench,  the  (piestion  will  be  reserved  for  their  consideration  at 
tiie  ensuing  September  term,  and  the  case  continued  for  final 
(irder  until  after  its  adjournment;  the  petitioner  in  the  mean 
time  being-  required  to  give  his  personal  recognizance  to  appear 
at  such  time  and  abide  the  further  order. 


The  Pkople  v.  Muller. 

(9G  N.  Y.,  408.) 
Obscene  literatukr  :  Evidence  —  Experts. 

1.  Expert  testimony  not  admissible,  etc.— On  the  trial  of  an  indictment 

uiiiliT  tlio  clause  of  the  Penal  Code  wliich  makes  the  selling,  loaninp;. 
j^ivin^  away  or  showing  of  an  ohscene  or  indecent  book,  writing,  pict- 
ure or  i»liotograi)h  a  misdemeanor,  the  question  of  obscenity  or  inde- 
cency is  one  that  falls  within  the  range  of  ordinary  intelligence,  and 
does  not  rerniire  the  testimony  of  an  expert  in  literature  or  art. 

2.  Same. —  On  the  trial  of  an  indictment  for  selling  obscene  and  indecent 

photographs,  the  defendant  called  as  a  witness  an  artist,  and  asked  him 
wiiether  there  is  a  distinguishing  line,  as  understood  by  artists,  between 
pure  and  obscene  and  indecent  art.  Tliis  was  objected  to  and  excluded. 
IMd,  no  error.  If  the  qui'stion  was  intended  simply  to  bring  out  the 
fact  that  pictures  might  be  either  decent  or  indecent,  and  tiiat  the  canons 
of  jiuro  art  would  accept  tlioso  of  one  class  and  reject  the  others,  it  was 
properlj'  rejected  an  an  attempt  to  prove  a  self-evident  proposition;  but 
if  the  (piestion  was  intended  to  be  followed  by  proof  that,  according  to 
the  artist's  standanl,  the  photograplis  w^ere  not  obscene  or  indecent,  it 
was  propi'rly  rejected,  aa  such  proof  was  incompetent.  It  was  likewise 
held  tliat  tiio  intent  of  tlie  defendant  in  selling  the  ph()tograi»hs  was 
not  an  element  in  determining  his  guilt,  and  that  therefore  evidence  of 
intent  was  incompetent. 

Ai»pcul  fr(jm  judgment  of  tlie  General  Term  of  the  Supreme 
Court. 

John  D,  Toicnxond,  for  appellant. 
John  Vincent,  for  respondent. 

AxDHKWs,  J.    Tbe  first  count  in  the  indictment  charges  the 
defendant  with  selling  indecent  and  obscene  photograplis,  rep- 


154 


AMERICAN  CRIMINAL  REPORTS. 


resenting  nude  females  in  lewd,  obscene,  indecent,  scandalous 
and  lajcivious  attitudes  and  postures,  and  in  the  second  count 
charges  him  with  having  in  his  ])ossession  divers  lewd,  scandal- 
ous, obscene  and  indecent  photogra])hs  of  the  same  chaiactor, 
with  intent  to  sell  the  same.  Section  317  of  the  Penal  (Jodo 
declares,  among  other  things,  that  a  person  who  sells,  lends, 
gives  away,  or  offers  to  give  away,  or  shows,  or  has  in  his  pos- 
session with  intent  to  sell  or  give  away,  or  to  show,  or  adver- 
tises, or  otherwise  offers  for  loan,  gift,  sale  or  distribution,  an 
obscene  or  indecent  bock,  writing,  paper,  picture,  drawing  oi- 
photograph,  is  guilty  of  a  misdemeanor.  The  evidence  on  the 
trial  in  support  of  the  indictment  related  to  nine  photographs 
produced  before  the  jury,  which  were  proved  to  have  boon 
sold  by  the  defendant  in  the  onfinary  course  of  his  employ- 
ment as  a  clerk  in  a  store  for  the  sale  of  books,  pictures  and 
])hotographs,  in  the  city  of  New  York.  The  record  ctjntiiins 
no  special  description  of  the  photographs,  except  that  it  ap- 
pears that  they  represented  nude  females,  and  were  j)h()t<) 
gra])hic  copies  of  painting's  which  had  been  exhibited  in  tiu! 
salon  in  Paris,  and  one  of  them  at  the  centennial  exhibition  in 
Philadelphia,  and  that  among  them  were  pictures  »lesignat(!!l 
'•La  Asphyxie,"  "After  the  liath,"'  and  "La  IJaigneuse." 

The  jury  by  their  verdict  of  guilty  necessarily  found  tliut 
the  photographs  were  obscene  and  ind  'cnt.  The  exliil)its 
were  produced  on  the  argument  of  the  apj-eal  at  the  general 
term,  and  the  court  in  its  o})inion  expressed  its  concurn'iKu! 
with  the  linding  of  the  jury,  saying  that  they  might  very  W(^ll 
have  found  that  the  photographs  were  both  indecent  and  oh 
scene.  They  were  not  ])ro(luced  in  this  court,  and  we  aro 
unable  to  pass  uymn  the  (piestion  of  their  obscenity  or  indc 
cenoy  from  an  inspection  of  tlio  pictures  themselves. 

If  the  defendant's  counsel  desired  to  insist  in  this  coui't  that, 
the  photograplis  were  not  in  fact  indecent  or  obscene, and  that 
tiiis  a])poared  from  the  photographs  themselves,  and  that  the 
finding  of  the  jury  was  thei'cfore  without  evidencie  to  su|)i)urt 
it,  it  was  his  duty  to  have  furnished  them  as  a  ])art  of  tlui 
record,  or  to  have  insiste;l  upon  their  production  by  the  dis 
triet  attorney.  Upon  the  case  as  presented  wo  must  assume 
that  the  pictures  were  of  the  character  described  in  the  indict- 
ment. 

But  exceptions  were  taken  by  the  defendant  on  the  trial 


THE  PEOPLE  V.  MULLER. 


455 


which  render  it  necessary  to  consider  to  some  extent  the 
scope  of  tiie  statute,  the  method  of  tryin;:^-  the  issue  of  obscen- 
ity and  indecency,  and  the  relevancy  of  proof  of  an  innocent 
intent  on  the  i)art  of  a  defendant  changed  with  a  viohition  of 
the  statute.  It  is  to  be  observed  tliat  tlic  statute  does  not  un- 
dei'take  to  define  obseene  or  inck^cent  pictures  or  publications. 
liut  tlie  words  used  in  the  statute  are  themselves  descri[)tive. 
They  are  words  in  common  use,  and  every  person  of  ordinary 
intelli<j;enco  understands  their  meaning,  and  readily,  and  in 
most  cases  accurat<^ly,  ap[)lies  them  to  any  object  or  thing 
brought  to  his  attention  which  involves  a  judgment  as  to  the 
(juality  indicated.  It  does  not  retpiire  an  e::port  in  art  or  lit- 
erature to  determine  whether  a  picture  is  obscene,  or  whether 
printed  woi'ds  are  olfensive  to  decency  and  good  morals.  These 
arc  matters  whicli  fall  within  the  range  of  ordinary  intelli- 
g(Mice,  and  a  jury  tioos  not  re(piire  to  be  informed  by  an  expert 
l)ofore  pronouncing  upon  them.  It  is  evident  that  mere  nudity 
in  painting  or  sculpture  is  not  obscenity.  Some  of  the  great 
works  in  painting  and  sculpture,  as  all  know,  rejjresent  nude 
human  forms.  It  is  a  false  delicacy  and  mere  prudery  which 
would  condemn  and  banish  from  sight  all  such  objects  as  ob- 
scene, sim])ly  on  account  of  their  nudity.  If  the  test  of  ob- 
scenity or  indecency  in  a  ])icturo  or  statue  is  its  capability  of 
suggesting  impure  thoughts,  then  indeed  all  sucli  representa- 
tions might  be  cousidercMl  as  indecent  or  obscene.  The  presence 
of  a  woman  of  the  purest  character  and  of  the  most  modest 
behavior  and  bearing  may  suggest  to  a  prurient  imagination 
images  of  lust,  and  excite  impure  desires,  and  so  nniy  a  picture 
or  statue  not  in  fact  indecent  or  obscene. 

The  test  of  an  obscene  book  w\is  stated  in  Rerjind  v.  WcJdin, 
ii.  II.,  15  Q.  I*.,  .'5(50,  to  be,  whether  the  tendency  of  the  matter 
charged  as  obscenity  is  to  deprave  or  corrupt  those  whose 
minds  are  o[)en  to  such  immoral  influences,  and  who  might 
come  into  contact  with  it.  We  think  it  would  also  be  a  proper 
test  of  obscenity  in  a  painting  or  statue,  whether  the  motive  of 
the  })ainting  or  statue,  so  to  speak,  as  indicated  by  it,  is  pure  or 
impun;,  whether  it  is  naturally  calculated  to  excite  in  a  spectator 
iinpui'o  imaginations,  and  whether  the  other  incidents  and 
(pialities,  however  attractive,  were  merely  accessory  to  this  as 
the  primary  or  main  purposes  of  the  representation. 


456 


AMERICAN  CRIMINAL  REPORTS. 


The  defendant,  on  tlie  trial,  called  as  witnesses  an  artist  Wlio 
had  practiced  painting  for  many  years,  and  also  a  person  who 
had  been  engaged  in  the  study  of  ai*t.  Tliey  Avere  asked  by 
defendant's  counsel  Avhether  there  was  a  distinguishing  line,  as 
understood  by  artists,  between  pure  art  and  obscene  and  inde- 
cent art.  The  question  was  objected  to  by  the  prosecutor  and 
excluded  by  the  court. 

The  issue  to  be  tried  was  whether  the  particular  photographs 
in  question  were  obscene  or  indecent.  The  <lefendant  was 
entitled  to  i)rove  in  his  defense  any  facts  legitimately  bearing 
upon  this  issue. 

The  fact  that  tlie  original  pictures  of  which  the  photographs 
were  copies  had  been  exhibited  in  the  salon  in  Paris  was  ad- 
mitted by  the  |)rosecuti()n,  and  it  was  ]>roved  that  one  of  them 
had  been  publicly  exhibited  in  Phihuleli)liia. 

But  this  did  not,  as  matter  of  law,  exclude  a  linding  by  the 
jury  that  the  photograplis  were  obscene  and  indecent.  It  is 
not  impossible,  certainly,  that  the  public  exhibition  of  indecent 
pictures  may  have  been  permitted  in  Paris  or  Philadelphia,  and 
the  fact  that  a  picture  had  been  publicly  exhibited  would  not 
necessarily  determine  its  character  as  decent  or  indecent.  In- 
deed there  is  but  little  scope  for  proof  bearing  u])on  the  issue 
of  decency  or  t)l)acenity,  beyond  the  evidence  furnished  bj'  the 
picture  itself.  The  question  which  was  excluded,  if  intended 
to  bring  out  the  fact  that  pictures  might  be  either  decent  or 
indecent,  and  that  the  canons  of  pure  art  would  accept  those 
of  one  class  and  reject  those  of  the  other,  was  proj)erly  ovef- 
ruled  as  an  attempt  to  prove  a  self-evident  proposition.  If  the 
(piestion  was  intended  to  be  followed  by  proof  that,  according 
to  the  standard  of  judgment  atlopted  anil  recognized  by  artists, 
the  photogi'aphs  in  question  were  noi.  obscen<i  or  indecent,  it 
was  ])roperly  rejected,  for  the  reason  that  the  issue  was  not 
whether,  in  the  opinion  of  witnesses,  or  of  a  class  of  people, 
the  photographs  were  indecent  or  obscene,  but  whether  they 
Avere  so  in  fact;  and  upon  this  issue  witnesses  could  neither  be 
permitted  to  give  their  own  opinions,  or  to  state  the  aggregate 
opinion  of  a  particular  cl.iss  or  part  of  the  community.  To 
permit  such  evidence  would  i)ut  the  witness  in  the  i>laco  of  the 
jury,  and  the  latter  would  have  no  function  to  discharge.  The 
testimony  of  experts  is  not  admissible  upon  matters  of  jutlg- 


TUE  PEOPLE  V.  3IULLER. 


467 


ment  within  the  knowledge  and  experience  of  ordinary  jury- 
men. 1  Greenl.  Ev.,  440.  Tlie  question  wlictlier  a  picture  or 
writing  is  obscene  is  one  of  the  plainest  that  can  be  presented 
to  a  jury,  and. under  the  guidance  of  a  discreet  judge  there  is 
little  danger  of  their  reaching  a  wrong  conclusion.  The  opin- 
ions of  witnesses  would  not  aid  the  jury  in  reaching  a  conclu- 
sion, and  their  admission  would  contravene  the  general  rule 
that  facts  and  not  opinions  are  to  be  given  in  evidence. 

The  defendant's  counsel  at  the  conclusion  of  tlie  evidence 
made  several  requests  to  charge,  which  were  denied  by  the  trial 
judge.  The  leading  purpose  of  those  requests  was  to  induce 
the  court  to  lay  down  the  rule  that  the  intent  of  a  defendant 
in  selling  a  picture  claimed  to  be  indecent  and  obscene  is  an 
important  element  in  determining  his  guilt.  The  statute  makes 
tlie  selling  of  an  obscene  and  indecent  picture  a  misdemeanor. 
There  is  no  exception  by  reason  of  any  special  intent  in  mak- 
ing the  sale.  The  object  of  the  statute  was  to  sup[)ress  the 
ti'utfic  in  obscene  publications,  and  to  pi'otect  the  community 
against  tlie  contamination  and  pollution  arising  from  their  ex- 
hibition and  distribution.  It  would,  Ave  conceive,  be  no  answer 
to  an  indictment  under  the  statute  for  the  sale  of  an  obscene 
picture,  that  it  was  sold  to  a  person  not  liable  to  be  injured  by 
it,  or  that  it  was  a  picture,  in  respect  to  execution,  of  dis- 
tinguished merit.  In  Jicf/ina  v.  Jllcldln,  siqn'a,  the  question 
was  whether  a  curtain  book  was  obscene  and  liable  to  seizure 
for  that  reason  under  an  English  statute.  It  ai)peared  that  it 
was  i)ublished  to  expose  the  alleged  immoralities  of  private 
confession  in  the  Roman  Catholic  church.  But  the  court  hav- 
ing found  that  passages  purporting  to  be  extracts  from  the 
\vritings  of  Iloman  Catholics  were  obscene  in  fact,  it  was  held 
that  the  intent  of  the  publication,  however  innocent,  was  no 
answer  to  the  proceeding. 

We  do  not  doubt  that  whether  a  publication  is  obscene  or 
not  may  in  some  cases  depend  on  circumstances.  For  example, 
a  medical  book  for  the  instruction  of  medical  men  may  con- 
tain illustrations  suitable  and  proper  as  a  part  of  the  work,  but 
which,  if  detached  and  published  alone  for  circulation,  might 
be  deemed  indecent  within  the  statute.  In  the  present  case 
there  was  no  evidence  to  which  the  requests  to  charge  were 
applicable.    The  pictures  in  question  were  kept  for  general 


458 


AMERICAN  CRIMINAL  REPORTS. 


sale,  except  tliat  thoy  were  not  sold  to  boys  undor  twenty -one 
years  of  a',^o.  The  requests,  as  applied  to  the  cas(\  were  ji 
series  of  abstract  propositions  having  no  relation  to  the  issii(\ 
and  Avere  on  that  ground,  independently  of  any  other  consid- 
eration, pro})erly  denied.  We  find  no  error  in  the  recoi-d. 
Tlie  case  seems  to  have  been  fairly  tried,  and  was  submitted  to 
the  jury  in  a  careful  charge,  and  with  the  verdict  of  the  jurv 
this  court  cannot  interfere.  The  statute  is  an  important  one. 
and  while  it  should  have  a  reasonable,  and  not  a  sti-ained,  con- 
struction, at  tlie  same  time  it  ought  to  have  such  a  jn'actical 
interj)retation  by  the  court  and  jury  as  will  subserve  the  im- 
portant purpose  of  its  enactment. 

The  judgment  should  be  alllrmcd. 

All  concur. 

Juclfjmcnt  affirmed. 


State  v.  BurrrAix. 

(89N.  C,  571.) 

Ordinance:  Toinis  and  cities  —  lidailing. 

1.  Town  ordinancos  must  be  subordinate  to  and  harmonize  with  the  f;oii- 

eral  law  of  the  state,unless  special  ix)wers  ai'e  conferred  upon  tlie  town 
by  its  charter. 

2.  Therefore,  in  the  absence  of  special  authority  over  the  subject,  it  mtx 

held  that  an  ordinance  prohibiting  the  sale  of  liquor  within  the  cdrpo- 
rate  limits  of  a  town  is  void,  as  the  general  law  allows  retailing  upon 
obtaining  license. 

Attomeij-GciK'ral,  for  the  state. 
Mr.  J.  C.  L.  llarr'tH^  for  defendant. 

IMkukimox,  J.  .Municipal  ordinances  and  by-laws  must  al- 
ways be  subordinate  to  and  harmoni/.e  with  the  genei-nl  laws 
of  the  state,  unless  in  cases  where  special  powers  are  conferred 
upon  the  municipality  to  pass  ordinances  inconsistent  with  the 
general  law.  Nor  can  numicij)alities,  by  ordinances,  create 
offenses  known  to  the  general  laws  of  the  state,  and  provide 
for  the  punishment  of  the  same,  unless  they  have  s|)ecial  au- 
thority so  to  provide,  conferi-ed  either  by  some  general  or 
special  statute.    Hence,  when  an  offense  is  indictable  in  the 


STATE  V.  BRIITAIN. 


459 


superior  court,  a  city  or  town  ordinance,  making  the  same  act, 
or  substiiiitially  tiio  same  act,  an  offense  punisluible  by  lino  or 
imprisonniont,  sucli  ordinance  is  void.  It  may  bo  tliat  the 
legislature  lias  power  to  authorize  a  town  to  make  an  offense 
against  the  state  a  separate  offense  against  the  town,  but  this 
could  bo  done  only  by  an  express  grant  of  authority.  Towtt 
of  WasliliKjtoii  V.  IIavimo)t(l,  70  N.  C,  y;>;  State  v.  Lamjston, 
88  N.  C,  (;!J2. 

The  statutes  of  this  state  make  it  indictable  to  soil  spirituous 
licpiors  by  a  measure  less  than  a  (piart  witiiout  Jirst  having  ob- 
tained a  license  so  to  do.  The  Code,  g^  107(5,  15701.  These 
statutes  embrace  and  apply  to  "the  town  of  Henderson ville." 

It  ai)i)ears  from  the  record  that  that  town  has  an  onlinance 
that  prohibits,  within  its  corporate  limits,  the  sale  of  "spiritu- 
ous, vinous  aiul  malt  li(piors;"  declares  such  a  sale  a  imlsance^ 
and  that  all  |)(>rsons  offending  against  it  shall  be  punished  by 
a  fine,  or  imprisoned  in  the  town  prison. 

Now,  "the  town  of  Henderson  ville"  has  no  special  power 
conferred  upon  it  by  law  to  prohibit  the  sale  of  liquors;  it 
cannot  do  so,  certainly,  as  to  retailing  spirituous  liquors  by  a 
measure  less  than  a  (piart,  by  virtue  of  its  general  powers,  be- 
cause the  general  laws  of  the  state  have  provided  that  persons 
may  so  retail  there,  lirst  having  obtained  a  license  so  to  do, 
and  made  it  indictable  to  retail  without  a  license. 

The  ordinance  in  question,  first,  prohibits  a  business  allowed 
and  I'egulated  by  the  general  law  of  the  state;  secondly,  it 
creates  an  otfense  and  provides  the  punishment  therefor,  em- 
l)raced  by  an  offense  punishable  by  the  like  general  law.  It  is 
plainly  inconsistent  witli  and  undertakes  to  supersede  a  law  of 
the  state.     It  is  therefore  void. 

It  nuiy  be  said  that  if  the  ordinance  is  void  as  to  spiritnous 
iicpiors,  it  is  not  so  as  to  vinous  and  malt  liquors.  We  are  not 
(;alled  upon  to  decide  that  question.  The  proof  was  that  the 
defendant  sold  liquors,  and  it  must  be  taken  that  he  sold 
spirituous  licpiors.  Most  generally  the  term  "liquors  "  in.;.iiea 
spirituous  liijuors;  and  besides,  if  the  prosecutor  insisted  that 
the  defendant  sold  vinous  and  malt  liquors,  the  onus  was  on 
him  to  show  the  fact. 

The  warrant  is  informal,  but  it  is  unnecessary  to  decide  the 


;<;'H*;vif ', 


460 


AMERICAN  CRIMINAL  REPORTS. 


question  raised  as  to  its  validity,  as  the  exception  we  have  con- 
sidered disposes  of  the  case. 

Tliere  is  no  error,  and  the  judgment  must  be  affirmed.  Let 
this  be  certified. 

No  error.  Affirmed. 


Edwards  v.  Co^raoN wealth. 
Andekson  v.  Same. 


(78  Va„  39.) 
Pardon:  Ita  effects. 

1.  PARDONBYGOVEnNOR.— The  governor's  pardon  relieves  the  offender  not 
only  of  the  punishment  annexed  to  the  offense  of  whioh  he  vas  ton- 
victed,  but,  also,  of  all  penalties  and  consequences,  inclusive  of  the  ad- 
ditional punishment  imposabic,  not  byjoason  of  tlie  scnti'Tict)  for  the 
second  offense  alone,  Juit  in  consecjuence  of  that  sentence  a\td  the  sen- 
tence in  the  former  case,  v.x'ccpt,  liowever,  political  disabilities  growinj; 
out  of  his  conviction  and  sentence.  Such  pardon  does  not  restore  an 
office  forfeited,  or  rights  that  have  become  vested  in  otiiers  by  reason  of 
tlie  conviction  and  sentence. 

li  STATKStENT. —  E.  wius  couvictcd  in  corporation  court  of  D.  of  felony  in 
M.nrch,  1883,  and  sentenced  to  confinement  in  the  jienitentiary.  In 
July,  1883,  lie  was  arraigned  in  the  circuit  court  of  Uiclimond,  ui)on  an 
information  alleging  that  he  had  been  before  convicted  and  sen- 
tenced for  a  like  offense,  to  wit,  in  March,  1881.  He  pleaded  a  full  p.-u- 
don  from  the  governor  for  the  first  offense,  granted  in  A])ril,  1882.  A 
demurrer  to  tliis  i)lea  was  sustained,  and  lie  was  senteiict'd  to  a  furtlicr 
term  of  five  years  in  the  penit'Mitiary,  under  Co<le  1873,  ch.  1!).'),  2.').  On 
eiTor,  it  was  held  that,  1st,  the  governor's  pardon  having,  in  a  legal 
sense,  blotted  out  the  first  offense,  it  must  be  regarded  iis  tliougli  it  hfi.I 
never  been  committed ;  2d,  that  the  demurrer  to  the  plea  should  have 
been  overruled. 

Error  to  judgment  of  Circuit  Court  of  Kiclimond. 

George  Bryan,  for  the  prisoners. 

F.  S.  Blair,  attorney-general,  for  the  commonwealth. 

Lewis,  P.,  delivered  the  opinion  of  the  court. 

The  statute  provides  that  Avhen  a  person  is  convicted  of  an 
offense  and  sentenced  to  confinement  therefor  in  the  peniten- 
tiary, and  it  appears  in  the  manner  prescribed  that  he  has  be- 


EDWARDS  r.  COMilONWEALTH. 


461 


foro  been  sontcncofl  in  i  lie  Uiiitccl  States  to  a  like  punishment, 
a  term  of  live  yeai*s'  confinement  shall  bo  added  to  the  term 
for  which  ho  is  or  would  bo  otherwise  sentenced.  Code  1873. 
oh.  105,  25;  Acta  of  AssenU)ly  1877-78,  p.  315,  25. 

At  the  .A[arch  term,  1883,  of  the  corporation  court  of  the 
town  of  Danville,  the  plaintiff  in  error  was  convicted  of  a 
felony,  and  sentenced  to  imprisonment  therefor  in  the  peniten- 
titiry.  On  the  Cth  day  of  July  foUowinj^,  under  the  pi-ovisions 
of  chapter  208  of  the  code  (now  Acts  of  Asr-iiibly,  1877-78. 
]>.  371),  he  was  arraigned  in  the  circuit  court  of  the  city  of 
Kichmond,  upon  an  information  filed  by  the  attovne}  for  the 
c«jiamon\voalth,  alleging  that  he  had  been  convicted  of  a 
felony  in  the  said  corporation  court  on  the  0th  day  of  ^larch, 
1881,  and  sentenced  therefor  to  iuiprisoinnent  in  the  peniten- 
tiary. Tlie  information  was  filed  upon  information  given  to 
the  said  circuit  court  by  the  superintendent  of  the  penitentiary, 
in  whose  custody  the  accused  then  was  in  pursuance  of  the 
sentence  pronounced  by  the  said  corporation  court  at  its  March 
term,  188;}.  The  accused,  upon  his  arraignment,  pleaded  in 
bar  of  the  proceedings  a  full  pardon  of  the  governor  for  the 
lirst  offense,  which  was  granted  on  the  25th  day  of  April,  1882. 
The  attorney  for  the  common wealtl  demurred  to  the  plea,  and 
the  demurrer  was  sustained,  and  the  accused  afterwards  sen- 
tenced to  undergo  a  further  confinement  in  the  penitentiary 
for  the  term  of  five  years,  commencing  from  the  expiration  of 
the  term  of  confinement  he  was  then  undergoing. 

The  single  question  now  to  be  determined  relates  to  the 
operation  and  effect  of  the  pardon  relied  on. 

A  pardon  is  defined  to  be  a  remission  of  guilt.  Its  effect, 
under  the  English  law,  is  thus  stated  by  Ilawkins  in  his  Pleas 
of  the  Crown :  "  The  pardon  of  a  treason  or  felony,  even  after 
a  conviction  or  attainder,  does  so  far  clear  the  party  from  the 
infamy  of  all  other  consequences  of  the  crime  that  he  may 
not  only  have  an  action  for  a  scandal  in  calling  him  traitor  or 
felon  after  the  time  of  the  pardon,  but  may  also  be  a  good 
Avitness  notwithstanding  the  attainder  or  conviction;  because 
the  pardon  makes  him,  as  it  were,  a  new  man." 

In  the  early  case  of  CmJdlngton  v.  Wi/h'ns,  Ilobart,  81,  the 
plaintiff  brought  an  action  against  the  defendant  for  denounc- 
ing him  as  a  thief.    The  defendant  pleaded  that  the  plaintiff 


TK'^-  i'ROPttrtY  OF 

m  l^.W  SOCIETY 


462 


AMERICAN  CrJMINAL  REPORTS. 


had  been  guilty  of  stealing  six  shoop.  The  plaintifT  replied 
that  after  the  felony,  and  before  the  jmblication  of  the  oljjee- 
tionable  \vor<ls,  he  had  l)een  i)ar(Uiiied  by  a  general  pardon. 
Upon  denmrrer  the  repl:e;ition  was  held  good.  The  whoh; 
court  were  of  opinion  that  tlunigh  the  plaintiff  were  a  thief 
once,  yet  the  elTect  of  the  king's  pardon  was  not  only  to  relievo 
him  of  the  ])unishmcnt  imposed,  but  to  clear  hin»  of  the  crime 
and  infamy. 

J'lackstone  says  the  elfect  of  a  pardon  by  the  king  is  to  make 
the  offender  a  new  man,  to  ae([uit  him  of  all  cor|)oral  penalti(>s 
and  forfeitures  annc^xed  to  the  offense  for  which  the  i)ardon  is 
granted,  ami  to  give  him  a  new  credit  and  capacity. 

The  same  ])rinciples  apply  to  a  panhm  of  the  president  of 
the  United  States,  (hiifcil  Stati's  v.  Wilm/i,  7  Peters,  15(».  In 
En  parte  (utrlaml^  4  Wall.,  :>."»l).  the  supreme  court  held  the 
petitioner,  having  received  a  full  pardon  for  all  offenses  by  him 
committed  arising  fi'oiu  ])articipation  in  the  rebellion,  was  re 
lieved  from  all  jienalties  and  disabilities  attached  to  the  com- 
mission of  his  offense,  and  was  placed  beycmd  the  reach  of 
punishment  so  far  as  the  offense  was  concerned;  that  it  was  not 
within  the  constitutional  power  of  congress  to  inflict  punisli 
ment  beyond  the  reach  of  executive  clemeiu'v,  and  accordingly 
that  ho  could  not  be  excluded,  by  reason  of  the  offense  for 
which  he  had  been  pardoned,  from  continuino-  in  the  enjoy- 
ment of  the  right  previously  accpiired  to  api)ear  as  counselor 
and  attorney  in  tlnit  court. 

In  delivering  the  opinion  of  the  court,  Afr.  Justice  Field  said: 
''  A  i)ar(lon  iviu-hes  both  the  punishment  prescribed  for  the 
offense  and  the  guilt  of  the  olfen<ler,  and  when  the  pardon  is 
full,  it  relieves  the  punishment  and  blots  out  of  existence  the 
guilt,  so  that  in  the  eye  of  the  law  the  offender  is  as  innocent 
as  if  he  had  never  committed  the  offense.  If  granted  Ix^foro 
conviction,  it  i*revents  any  of  the  penalties  and  disabilities 
consecpient  upon  convictit>n  from  attaching;  if  granted  after 
conviction,  it  removes  the  ])enalties  and  disabilities,  and  re- 
stores him  to  all  his  civil  rights  —  it  makes  him,  as  it  were,  a 
new  man,  and  gives  him  a  new  credit  and  capacity.  There  is 
only  this  limitation  to  its  operation:  it  does  not  restore  ollices 
forfeited,  or  property  or  interests  vested  in  others  in  conse- 
quence of   the  conviction   and   judgment."     And   the  same 


EDWARDS  V.  COMMONWEALTH, 


463 


learned  judge,  in  dolivcrinfr  the  opinion  of  the  court  in  the 
later  case  of  Varlme  v,  Tlie  IDuted  Sto.te.%  10  AVall.,  147,  said: 
"There  has  been  some  difference  of  opinion  among  the  mem- 
bers of  the  court  as  to  cases  covered  l>y  the  pardon  of  tlie 
president,  but  there  has  been  none  as  to  the  elFect  and  opera- 
tion of  a  pardon  in  cases  wliere  it  apphes.  All  have  agreed 
that  tlic  pardon  not  merely  releases  the  olfender  from  punish- 
ment prescribed  for  the  olfense,  but  that  it  obliterates  in  legal 
contemplation  tiie  offense  itself." 

In  Ofthoni  v.  United  St<itrn,  01  U,  S.,  474,  the  court  say:  "It 
is  of  the  very  essence  of  a  pardon  that  it  releases  the  offender 
from  the  conse(|ucnces  of  his  offense."'  And  to  the  same  effect 
are  all  the  authorities, 

r>y  the  constitution  of  Virginia,  the  govemor  is  empowered 
to  grant  reprieves  and  pardons  after  comj'id'ion,  except  when 
the  j)i'ose('ution  has  been  carried  on  by  the  house  of  delegates, 
and  to  renut  fines  and  penalties  in  such  cases  and  under  such 
nil(?s  and  regulations  as  may  be  i)rescribed  by  law.  lie  is  also 
(Mn|t(>wered  to  remove  political  disa1)ilitios  consequent  upon 
convicticm  for  offenses,  and  to  commute  capital  ])unishment. 
('oust.,  art.  IV,  5, 

It  will  tiius  be  seen  that  certiiin  restrictions  are  here  imposed 
ii|)on  the  exercise  of  the  i)ardoning  i)ower  whicli  are  not  found 
in  the  laws  of  England  or  of  the  United  States.  r>ut  subject 
to  these  rest I'ict ions,  the  effect  of  the  governoi's  ])ardon  must 
\\o.  determined  by  the  Siimo  rules  which  apply  to  a  pardon  by 
the  British  crown  or  by  the  president  of  the  United  States. 

By  the  pardon  in  question,  ther(>t'ore,  the  plaintdf  in  error 
was  not  oidy  mlieved  of  the  ])unishment  annexed  to  the  offense 
for  which  he  had  been  convicte<l,  but  of  all  penalties  and  con- 
secpiences,  except  political  disabilities,  growing  out  of  his  con- 
viction and  sentence.  One  of  those  consequences  was  the 
liability  to  which  it  sidijected  hiui  to  receive  the  additional 
punishment  presci-ibed  by  the  statute,  in  case  he  slu>uld  be 
afterwards  sentenced  to  the  penitentiary  in  this  state.  And 
that  additional  puuishmer*^  ha ,  been  imposed  in  this  case,  not 
hy  reason  «>f  the  sentence  for  the  second  offense  alone,  but  hi 
conseciuence  of  that  sentence  ond  the  sentence  in  the  former 
case,  Both  causes  must  exist  together  to  produce  the  effect 
contemplated  by  the  statute;  in  the  absence  of  either,  no  case 
is  made  for  the  imposition  of  the  additional  punishment  the 


464 


AMERICAN  CRIMINAL  REPORTS. 


i  ^'Jttiily.  f.'- 


statute  prescribes.  But  as  the  first  offense  was  in  legal  con- 
templation blotted  out,  and  its  consequences  removed  by  tlie 
pardon  of  the  governor,  it  must  be  regarded,  for  the  pur|)()S(\s 
of  this  case,  as  though  it  had  never  been  committed.  It  fol- 
lows, therefore,  that  the  judgment  of  the  circuit  court,  sustain- 
ing the  demurrer  to  the  prisoner's  plea,  is  erroneous  and  nuist 
be  reversed. 

A  like  order  will  be  entered  in  tlie  case  of  Anderson  v.  Tin- 
Commonwealth^  in  which  tlie  same  question  is  involved,  and 
was  heard  with  tliis. 

The  judgment  was  as  follows: 

This  day  came  again  as  well  the  plaintiff  in  error  by  liis 
attoi'uey,  as  the  attorney -general  on  behalf  of  the  common- 
wealth, and  the  court,  having  maturely  considered  the  tran- 
script of  tlio  record  of  the  judgment  aforesaid  and  tlie 
arguments  of  counsel,  is  of  opinion,  for  reasons  stated  in 
writing  and  filed  with  the  record,  that  the  said  circuit  court 
erred  in  sustaining  the  demurrer  to  the  special  plea  of  pardon 
of  the  said  plaintilF  in  error,  ami  in  rejecting  the  said  plea,  and 
in  overruling  the  said  plaintiff's  motion  in  arrest  of  judgment, 
and  in  sentencing  him  to  confinement  in  the  })enitentiary  for  the 
term  of  five  years,  commencing  from  the  expiration  of  the 
term  of  confinement  therein  to  which  he  bad  l)een  sentenced 
by  the  said  corporation  court  of  the  town  of  Danville,  on  tlic 

day  of  ]\rarch,  1883;  and  that,  instead  of  doing  so,  the 

said  circuit  court  ought  to  have  overi'uled  the  said  denuu-rcr 
and  sustained  the  said  plea,  .and  dismissed  and  <lisciiarged  the 
said  plaintiff  of  and  from  the  premises  in  the  said  information 
specified,  according  to  the  true  intent,  meaning  and  effect  of 
the  said  pardon. 

Therefore,  it  is  considered  that  the  said  judgment  l)e  re- 
versed and  annulled;  and  this  court,  proceeding  to  enter  such 
judgment  as  the  said  circuit  court  ought  to  have  entered,  it  is 
further  considered  that  the  said  demui'rer  be  overruled,  the  said 
plea  of  pardon  be  sustained,  and  the  said  plaintiff  be  dismissed 
and  discharged  of  and  from  the  premises  in  the  said  information 
specified,  according  to  the  true  intent,  meaning  and  effect  of 
the  said  pardon,  and  go  thereof  without  day,  etc.,  which  is 
ordered  to  be  certified  to  the  said  circuit  court  of  the  city  of 
Richmond. 

Judgment  reversed. 


JACOBS  V.  STATE. 


465 


Jacobs  v.  State. 

(61  Ala.,  448.) 

PERJUnY:  Ajjldavit  —  Materiality  of —Indictment — Misnomer. 

1.  Perjury  —  False  affidavit. — A  plaintiff  in  an  action  of  detinue,  who  is 

without  right  or  title  which  will  support  the  action,  and  who  wilfully 
and  corruptly  swears  falsely  to  an  affidavit  of  ownership,  thereby  pro- 
curing an  order  of  seizure  from  the  officer  issuing  the  summons., —  an 
order  the  officer  cannot  withhold  if  the  plaintiff  also  executes  a  proper 
bond,—  is  guilty  of  legal  perjury. 

2.  Materiality  of  matter  falsely  sworn  to,—  An  affidavit  made  at  the 

commencement  or  pending  a  suit  to  procure  the  exercise  of  some  partic- 
ular power  from  the  court,  or  from  some  officer  thereof  charged  with 
tlie  exercise  of  power,  and  which  can  exert  no  influence  in  any  subse- 
quent stage  of  the  proceeding,  constitutes  indictable  perjury,  if  the  mat- 
ter falsely  sworn  to  be  material  to  the  point  of  inquiry  at  the  time  it  is 
made. 

3.  Indictment  —  What  it  must  show.— Although  the  Alabama  statute 

has  disjjensed  with  many  of  the  allegations  essential  to  an  indictment 
for  i)erjury  at  common  law,  i*^  !s  still  necessary,  in  addition  to  the  gen- 
eral averment  of  authority  in  the  court  or  officer  to  administer  the 
oath,  to  set  forth  the  substance  of  the  proceedings,  that  it  may  distinctly 
apjwar  the  oath  was  not  extra-judicial,  that  it  was  taken  on  an  occa- 
sion, in  reference  to  a  fact  material,  and  before  a  court  or  officer  having 
lK)wer  to  administer  it.  An  indictment  which  does  not  set  forth  enough 
of  the  i)rocecding8  to  disclose  these  facts  is  insufficient  under  the  statute. 

4.  Misnomer  —  Names  of  parties  to  proceedings  in  which  the  false 

OATii  was  taken. — The  names  of  the  parties  to  the  proceedings  in 
which  the  false  oath  was  alleged  to  have  been  taken  are  essential  to 
its  identity,  and,  if  incorrectly  stated,  the  variance  is  fatal  to  the  prose- 
cution. 


Appeal  from  Montgomery  City  Court. 

J.  S.  c6  John  Gindrat  Winter,  for  appellant. 
JI.  C.  Tompkins,  attorney-general,  for  appellee. 

Brickell,  C.  J.  1.  Justices  of  the  peace  have  jurisdiction 
of  actions  of  detinue,  dependent  on  the  value  of  the  property 
in  controversy.  When  an  action  of  detinue  is  instituted  in  the 
circuit  court,  the  plaintiff,  on  making  affidavit  that  the  prop- 
erty sued  for  belongs  to  him,  and  the  execution  of  a  bond,  with 
surety,  for  the  payment  of  all  such  costs  and  damages  as  the 
defendant  may  sustain  from  the  wrongful  suit,  can  obtain  an 
order  directing  the  officer  executing  the  summons  to  take  pos- 
VOL.  IV  — 30 


^QQ 


AMERICAN  CRimNAL  REPORTS. 


session  of  the  property.  Code  of  1876,  §  2942.  Statutory 
provisions  regulating  civil  suits  in  the  circuit  court,  so  far  as 
applicable,  are  declared  in  full  force  as  to  the  rights  of  parties 
and  to  suits  before  justices  of  the  peace.  The  purposes  of  the 
statute  —  the  security  and  preservation  of  the  property,  pend- 
ing the  suit  for  its  recovery,  so  that  it  may  be  forthcoming  to 
answer  the  judgment,  or  the  successful  party  indemnilied 
against  injur^^  from  its  convei*sion  or  loss  —  extend  with  like 
force  to  an  action  of  detinue  before  a  justice  as  to  the  action 
when  commenced  in  the  circuit  court.  While  some  of  its  pro- 
visions may  seem  to  indicate  that  it  was  designed  to  be  limited 
to  suits  in  the  circuit  court,  yet  it  is  capable  of  a  just  applica- 
tion to  suits  before  justices,  and  such  application  renders  the 
jurisdiction  of  the  justice  more  beneficial  to  suitors.  Wo 
therefore  regard  it  as  a  rctjulation  of  suit,  falling  within  th(> 
operation  of  section  .']G02  of  the  code. 

2.  The  affidavit  the  plaintiff  in  an  action  of  detinue  is  re- 
quired to  make  serves  its  purpose  when  the  order  of  seizure  is 
made.  It  is  purely  cavtlonfiry  —  a  pledge  of  good  faitli  in  the 
comniencoment  of  the  suit,  required  to  prevent  an  al)useof  the 
extraordinary  power  to  disturb  and  displace  the  possession  of 
tlie  defendant,  before  he  has  had  the  opportunity  of  being 
heard  in  defense  of  it,  and  before  judgment  ])ronouncing  it 
wrongful.  When  the  order  is  made,  the  force  of  tlio  affidavit 
is  exhausted,  and  it  is  not  evidence  in  any  subsequent  stage  of 
the  suit.  To  constitute  indictable  perjury,  the  matter  or  thing 
sworn  to  must  bo  material  to  the  issue,  or  to  the  point  of 
inquiry.  The  mnferiality  is  not,  as  is  argued  by  tlio  counsel 
for  appellant,  confined,  when  the  oath  is  taken  in  a  judicial 
proceeding,  to  matters  which  are  involved  in  the  issues  of  facts 
formed  during  the  coui-se  of  the  proceeding.  Nor  is  it  essen- 
tial that  the  affidavit  should  be  capable  of  being  used  as  evi- 
dence on  the  trial  of  such  issues.  It  is  enougli  that  the  mattei- 
falsely  sworn  to  is  material  to  the  jwint  of  inquiry  at  the  time 
it  was  made.  Oaths  are  of  frequent  necessity  at  the  com- 
mencement or  during  the  progress  of  judicial  proceedings. 
Avhich  are  matters  of  evidence  only  to  procure  the  exercise  of 
some  particular  power  from  the  court,  or  from  some  officer 
charged  with  the  exercise  of  power,  and  which  can  exert  n(» 
influence  on  the  final  judgment,  or  in  any  subsequent  stage  of 


JACOBS  V.  STATE. 


467 


the  proceeding.    Thus,  formerly,  an  affidavit  to  hold  a  defend- 
ant in  civil  case  to  bail  may  have  been  false,  and  may  have 
been  made  at  the  commencement,  or  pending  the  suit ;  or  bail 
may  falsely  swear,  or  others  may  falsely  swear  as  to  their  suffi- 
ciency ;  or  an  affidavit  may  be  falsely  made  to  procure  a  writ  of 
arrest,  or  as  foundation  for  proceeding  to  compel  another  to  keep 
the  peace.     The  force  of  the  false  oath,  as  matter  of  evidence, 
is  exhausted  when  the  point  of  inquiry  is  determined.    Yet,  in 
each  case,  the  essential  quality  of  indictable  perjury,  m((ferJi(lity 
to  the  point  of  inquiry,  exists.     Hawkins,  bk.  1,  ch.  00;  Pratt 
V.  Price,  11  Wend.,  127;  State  v.  Johnson,  7  Blackf.,  41);  Whit" 
V.  State,  1  S.  &  M.,  149.     All  such  false  oatlis  tend  to  the  abuse 
of  the  administration  of  justice,  .and  are  indictable  perjuries, 
though  not  affecting  the  principal  judgment  to  be  rendered  in 
the  cause.     A  plaintiff,  in  an  action  of  detinue,  Avlio  is  without 
riglit  or  title  which  will  support  tlie  action,  and  Avho  wilfully 
and  corruptly  swears  falsely  to  an  affidavit  of  ownership, 
thereby  procuring  an  order  of  seizure  from  the  officer  issuing 
the  summons  —  an  order  the  officer  cannot  Avithhold  if  the 
plaintiff  also  executes  a  proper  bond  —  is  guilty  of  legal  perjury. 
J5.  It  is  said  by  Mr.  Chitty  that,  "  in  former  times,  indict- 
ments for  ])orjury  were  exccodingly  prolix  and  d;uig(M'ous," 
And  it  seems  certain  that  at  common  law  it  was  deemed 
necessary  the  indictment  should  with  great  particularity  set 
fortii  the  proceeding  in  whicli  the  oath  was  taken,  and  the 
character  and  jurisdiction  of  the  court  or  officer  administering 
it.     Prosecutions  for  the  offense  were  embarrassed  by  this  par- 
ticularity, and  as  is  recited  in  the  preamble  to  the  act  of  23 
Geo.   2,   c.  11,   §  3,  sometimes  thereby  the   guilty  were  en- 
abled to  escape  unpunished.     2  Russ.  Cr.,  021;   2  Bish.  Cr. 
Vw,  §  901.    The  evil,  it  was  the  purpose  of  that  act  to  remove; 
ami  it  dispensed  with  the  necessity  of  setting  out  in  the  indict- 
ment the  pleadings,  or  any  part  of  the  record  or  proceedings, 
or  the  commission  or  authority  of  the  court  or  person  before 
Avhom  the  perjury  was  committed;  declaring  it  sufficient  to  set 
forth  the  substance  of  the  offense  charged  upon  the  defendant, 
and  by  what  court,  or  before  whom,  the  oath  or  affirmation  was 
taken,  averring  such  court  or  such  person  or  persons  had  com 
p(^tent  authority  to  administer  the  samo,  with  proper  averments 
to  falsify  the  matter  or  matters  wherein  perjury  was  assigned. 


468 


AMERICAN  CRIMINAL  REPORTS. 


This  act  was  adopted  in  terms  by  the  territorial  legislature 
in  1807  (Aik.  Dig.,  118,  §  22),  and  it  was  part  of  the  Penal 
Code  of  IS-tl  (Clay's  Dig.,  445,  §  35).  The  present  statute  is 
not  materially  variant,  and  reads:  "In  an  indictment  for  per- 
jury, or  subornation  of  perjury,  it  is  not  necessary  to  set  fortli 
the  pleadings,  record  or  proceedings  with  which  the  false  oath 
is  connected,  nor  the  commission  or  authority  of  the  court  or 
pei*son  before  whom  the  perjury  was  committed ;  it  is  sufficient 
to  state  tlie  substance  of  the  proceedings,  the  name  of  the 
court  or  officer  before  whom  the  oath  was  taken,  and  that  such 
court  or  officer  liad  authority  to  administer  it,  Avith  the  neces- 
sary allegations  of  the  falsity  of  the  matter  on  which  <  le  per- 
jury is  assigned."  Code  of  1870,  §  4813.  It  is  said  by  Judge 
Gaston,  the  principal  effect  of  the  act  of  23  Geo.  2  "was  to 
substitute  in  the  indictment  the  general  averment  of  a  compe- 
tent authority  to  administer  the  oath,  in  the  place  of  a  specilic 
averinent  of  the  facts  showing  such  authority,  and  to  make 
the  question  whetlier  the  oath  was  or  was  not  taken  before  a 
competent  jurisdiction  a  compound  question  of  fact  and  law, 
to  be  decided  by  the  petit  jury  under  the  advice  of  the  court." 
State  V.  Gall'imore,  2  Ired.,  375-0.  Under  the  present  statute  a 
general  averment  of  autlu)rity  to  administer  tlie  oath  is  suffi- 
cient. In  addition  to  this  general  averment,  the  indictment 
must  set  forth  the  snhsfanec  of  the  proceedings,  that  it  may  dis- 
tinctly apj)ear  the  oath  was  not  extra-judicial  —  that  it  was 
taken  on  an  occasion,  in  reference  to  a  fact  material,  and  before 
a  court  or  officer  having  authority  to  administer  it ;  when  if  false, 
it  is  the  subject  of  legal  perjury.  An  indictment  not  setting 
out  enough  of  the  proceedings  to  disclose  these  facts  is  not 
sufficient  under  the  statute.  Or  if  it  sets  out  the  proceedings. 
and  does  not  disclose  the  oath  was  lawfully  administered,  it  is 
insufficient. 

The  present  indictment  avers  only  that  the  appellant  had 
commenced  an  action  of  detinue  before  a  justice  of  the  peace, 
and  had  made  affidavit  of  his  ownership  of  the  chattels  sued 
for,  which  is  averred  to  be  false.  The  purpose  of  making  the 
affidavit  is  not  shown,  nor  is  it  shown  that  it  was  used,  or 
attempted  to  be  used,  in  the  course  of  the  suit.  The  affidavit 
was  not  authorized  by  law,  unless  the  apjiellant  had  applied  for 
an  order  of  seizure  of  the  chattels.    If  no  such  application  was 


JACOBS  V.  STATE. 


469 


made  or  no  sncli  order  obtained,  the  affidavit  was  extra-judicial, 
the  justice  was  without  authority  to  take  it,  and  it  is  not  the 
subject  of  indictable  perjury.  People  -y.  i^oj?,  25  Mich.,  492; 
People  V.  Gulfje,  20  Mich.,  30.  The  allegations  of  the  indict- 
ment may  bo  true,  and  the  affidavit  may  have  been  improperly 
extorted  by  tlie  justice  as  a  condition  on  which  he  would  enter- 
tain the  suit,  and  issue  process  for  the  appearance  of  the  defend- 
ant. Or  it  may  have  been  ignorantly  made,  to  be  used  as 
evidence  on  behalf  of  the  appellant  on  the  final  trial  before  the 
justice.  Tiiere  must  be  an  oath  authorized  by  law,  and  the 
indictment  must  show  it  alfirmatively.  It  does  not  appear 
fi'om  the  present  indictment  that  the  justice  had  authority  to 
administer  the  affidavit,  and  it  could  only  be  made  to  appear 
by  the  averment  that  the  appellant  had  applied  for  an  order  of 
seizure  under  the  statute.  If  such  application  and  oi'dor  of 
seizure  was  made,  the  substance  of  the  proceedings  are  not 
stated,  and  tlie  indictment  is  not  in  conformity  to  the  statute. 

4.  The  occasion  of  administering  the  oath  must  be  correctly 
stated  in  the  indictment.  The  proceeding,  if  judicial,  in  which 
it  was  administered  must  be  accurately  described,  so  that  it  is 
capable  of  being  identified.  2  Chit.  Cr.  Law,  307.  The  names 
of  the  i)arties  to  the  proceeding  are  essential  to  its  identitj',  and, 
if  incorrectly  stated,  the  variance  is  fatal  to  the  prosecution. 
The  suit  described  in  the  indictment  was  against  Cobbs,  while 
that  of  which  evidence  was  given  was  against  Cobb.  The 
n.'imes  are  not  idem  sonans,  Humphrey  v.  Whltten,  17  Ala.,  30. 
The  api)ellant  Avas  entitled  to  the  fourth  charge  requested. 

We  do  not  deem  it  necessary,  in  the  present  state  of  the  rec- 
ord, to  consider  any  other  question  which  the  case  may  involve. 
If  they  should  arise  again,  it  will  be  probably  in  a  different 
mode.  The  judgment  must  be  reversed  and  the  cause  re- 
manded. 

The  prisoner  will  remain  in  custody  until  discharged  by  due 
0001*80  of  law. 


hv! 


470 


AMERICAN  CRIMINAL  REPORTS. 


.(■'.. 


Freemaii  v.  The  State. 

(10  Fla.,  553.) 

Perjury  :  Different  statements. 

1.  It  is  not  sufficient  to  show  that  defendant  made  different 

STATEMENTS. —  In  tlio  trial  on  an  indictment  for  perjury,  to  secure  a  con- 
viction it  is  not  sufficient  to  prove  that  the  defendant,  at  different  times, 
testified  to  two  opposite  things  irreconcilable  with  each  other.  There 
must  he  testimony  outside  of  liis  own  contradictory  statements  as  to 
which  of  such  statements  is  false. 

2.  Ordinances  must  be  proved. —  Courts  cannot  take  cognizance  of  the 

ordinances  of  an  incorporated  town.  They  are  subjects  of  proof.  In 
an  indictment  for  jierjury,  a.ssigned  upon  testimony  given  in  a  mayor's 
court  jn  the  trial  for  a  violation  of  a  municipal  ordinance,  the  indict- 
ment should  so  charge  it,  and  tlie  evidence  should  prove  it. 

Writ  of  Error  to  the  Circuit  Court  for  Madison  County. 

O.  J.  StnpUng,  for  pliiintiff  in  error. 
The  Attorney-General,  for  the  state. 

Mr.  Justice  Van  Valkenuuugu  delivered  the  opinion  of  the 

COUl't. 

On  the  13th  day  of  April,  1882,  the  grand  jury  of  Madison 
county  found  a  bill  of  indictment  against  Eli  Freeman  for 
perjury. 

The  perjury  alleged  consisted  in  this:  On  the  Ttli  day  of 
January,  1882,  one  Gilbert  Armstrong  was  tried  before  F.  AV. 
Pope,  mayor  of  the  town  of  Madison,  for  betting  with  one  Josei)h 
Allen  at  a  game  of  chance  called  "pulling  the  string."  Tiiis 
plaintiff  in  error,  Eli  Freeman,  was  called  as  a  witness,  and 
testified  "that  they  (meaning  the  said  Armstrong  and  Allen) 
were  betting,  and  there  was  money  up,  and  I  held  th o  stakes, 
and  that  they  and  each  of  them  then  and  there  had  money  in 
his  hands  to  abide  the  result  of  said  game  of  chance."  I'hat 
afterwards,  and  on  the  same  day,  in  another  matter  wherein 
one  Joseph  Allen  was  tried  before  F.  W.  Pope,  mayor  of  the 
town  of  Madis(m,  for  betting  with  one  Gilbert  Armstrong  at 
a  game  of  chance  called  "pulling  the  string,"  the  plaintiff  in 
error  was  called  as  a  witness  to  prove  such  betting,  and  wil- 
fully and  corruptly  swore  "  that  there  was  no  betting  done 
and  I  did  not  see  any  money  staked,"  meaning  thereby  to  say 
that  there  was  no  money  bet  by  the  said  Joseph  Allen  and  the 


FREEMAN  v.  THE  STATE. 


471 


said  Gilbert  Armstrong,  or  staked  upon  the  result  of  the  saiti 
game  of  chance  called  "  pulling  the  string,"  on  the  said  7th 
day  of  January,  1882. 

The  cause  was  tried  and  the  prisoner  found  guilty. 

Counsel  then  moved  for  new  trial,  which  motion  was  denied, 
and  the  cause  comes  here  on  writ  of  error.  The  errors  assigned 
are  as  follows: 

I.  The  court  erred  in  overruling  defendant's  motion  for  new 
trial,  for  that  J.  L.  Bunting,  a  juror,  had  pronounced  and  ex- 
pressed an  opinion  in  such  cause. 

II.  The  evidence  was  insufficient  to  support  a  verdict  of 
guilty. 

III.  The  verdict  was  contrary  to  law. 

IV.  And  for  other  causes. 

Nothing  appears  in  the  record  to  sustain  in  any  way  the 
fust  alleged  error.  It  is  made  one  of  the  grounds  of  the  mo- 
tion for  a  now  trial,  but  the  bill  of  exceptions  is  silent  upon 
the  subject,  having  in  it  no  suggestion  or  evidence  to  support 
it.  The  second  error  assigned  depends  entirely  upon  the  evi- 
dence takon  upon  the  trial  of  the  cause.  The  first  witness,  B. 
C.  Pollard,  testified  that  the  town  of  Madison  was  incorpo- 
rated; that  he  was  marshal  of  the  town;  that  on  the  7th 
day  of  January,  1882,  he  arrested  Gilbert  Armstrong  and  Joe 
Allen  and  took  them  before  F.  W.  Pope,  mayor  of  said  town, 
for  betting  and  gambling  at  a  game  of  chance  called  "pulling 
the  string;"  that  Eli  Freeman,  this  plaintiff  in  error,  was  a 
witness  before  such  mayor  in  the  cause  of  The  Town  of  Mad- 
ison V.  Joe  Allen,  and  swore  that  there  was  no  betting  or  gam- 
bling at  the  game  of  chance  called  "pulling  the  string" 
between  Gilbert  Armstrong  and  Joe  Allen  on  the  said  7th  of 
January,  1882,  and  that  there  was  no  money  up  or  staked  be- 
tween them, 

AY.  A.  Baker  testified  that  he  was  present  at  a  mayor's  court, 
in  the  town  of  Madison,  on  the  7th  day  of  January,  A.  D. 
1 S82 ;  that  Eli  Freeman  was  sworn  in  the  case  of  Town  of 
Madison  v.  Gllhert  Anmtwng,  charged  with  betting  and  gam- 
bling at  a  game  of  chance  called  "  pulling  the  string,"  and 
stated  under  oath  that  there  was  betting  and  gambling  between 
the  said  Armstrong  and  one  Joe  Allen ;  that  money  was  up ; 
that  he,  Freeman,  held  the  stakes. 


472 


AMERICAN  CRIMINAL  REPORTS. 


Afterwards,  and  on  the  same  day,  Joe  Allen  was  arrested 
and  taken  before  the  mayor  for  betting  and  gambling  at  the 
game  of  chance  called  " pulling  the  string;"  that  before  the 
trial  Eli  Freeman  was  sworn  as  a  witness,  and  testified  tluit 
there  was  no  betting  and  gambling  at  the  said  game,  and  tliat 
there  was  no  money  up  to  abide  the  result  of  the  said  game  of 
cluince ;  was  present  at  both  trials ;  supposed  it  to  be  half  an 
hour  between  the  trials.  F.  W.  Poi)e,  mayor  of  the  towii  of 
Madison,  administered  the  oath  to  Freeman  in  both  cases. 

C.  S.  Church  testified  that  he  was  present  at  the  mayor'-j 
court,  in  town  of  Madison,  on  the  7th  day  of  January,  1882 ; 
that  Gilbert  Armstrong  and  Joe  Allen  were  tried  by  F.  W. 
Pope,  mayor  of  the  town  of  Madison,  on  that  day  for  bntting 
and  gambling  at  a  game  of  cl)ance  called  "pulling the  string." 
Freeman  was  sworn  as  a  witness  in  both  cases.  In  the  case 
against  Armstrong  he  swore  there  was  betting  and  gambling 
done  between  the  said  Armstrong  and  Allen;  that  he.  Free- 
man, held  money  staked  to  abide  the  result  of  the  said  game 
of  chance.  In  the  case  against  Allen,  Freeman  stated  that 
there  was  no  betting;  that  ho  did  not  hold  the  stakes,  nor  did 
he  see  any  money  up.  Madison  is  an  incorporated  town,  and 
F.  W.  Pope  is  tlie  mayor.  Freeman  was  sworn  in  both  cases 
by  the  mayor.  This  is  the  substance  of  all  the  evidence,  and 
it  ap[)ears  that  the  plaintiff  in  error  made  two  distinct  state- 
ments under  oath  regarding  one  transaction,  that  is,  the  bet- 
ting and  gambling  of  Armstrong  and  Allen  at  a  game  of 
chance  called  "  pulling  the  string."  There  is  no  evidence  to 
prove  which  of  the  two  statements  is  the  true  one,  or  which 
is  the  false  one.  "  Where  the  defendant  has  made  two  distinct 
statements  under  oath,  one  directly  the  reveree  of  the  othei',  it 
is  not  enough  to  produce  the  one  in  evidence  to  prove  tlio  oath 
to  be  false."  Wharton,  Crim.  Law,  §  2275.  (3ther  evidence 
should  luive  been  produced  to  show  which  statement  was  the 
true  one  and  which  the  false,  in  order  to  convict  the  prisoner. 
Mr.  Bishop  in  his  Commentaries  on  the  Criminal  Law,  §  lo-ll, 
says :  "  If  a  witness  testifies  either  in  two  different  causes,  or 
in  one  cause  at  different  examinations,  or  at  one  examination,  to 
two  opposite  things  irreconcilable  with  each  other,  he  commits 
perjury  in  making  the  false  statement,  but  not  in  making  the 
true  one,  and  though  what  he  said  when  he  told  the  truth  may 


FREEMAN  v.  THE  STATE. 


473 


be  shown  in  evidence  against  him  on  an  indictment  for  the 
falsoliood,  yet  there  must  be  testimony  outside  of  his  own  con- 
tradictory statements  as  to  which  of  tV  jm  is  false."  J?<yina 
V.  llnyhes,  1  Car.  &  Kir.,  519  (47  E.  C.  L.,  519);  The  King  v. 
JIai'i-ii,  5  IJarn.  &  Ahlcrson,  920  (7  Eng.  C.  L.,  304);  State  v. 
J.  B.,  1  l\vler  (Vt.),  209;   U.  S.  v.  Jfui/cr,  Deady,  127. 

In  Jii'f/iiia  V.  Whitehead,  8  Car.  &  Payne,  238  (34  Eng,  Com. 
L.  R.,  309),  tlie  court  said:  "It  is  not  suHicient  that  it  should 
bo  ])rovod  that  the  defendant  has  on  two  different  occasions 
given  directly  contradictory  evidence,  although  he  may  have 
wilfully  done  so;  but  you  must  in  this  case  be  satisfied  affirm- 
atively that  what  ho  swore  at  the  quarter  sessions  was  false ; 
and  I  am  of  the  opinion  that  that  would  not  be  sulHcieutly 
shown  to  bo  false  by  the  mere  fact  that  the  defendant  had 
sworn  the  contrary  at  another  time ;  it  might  be  that  his  evi- 
dence at  the  quarter  sessions  was  true,  and  that  his  deposition 
before  i^fr.  Croft,  tho  magistrate,  Avas  false,  and  if  so,  he  must 
be  acquitted." 

This  complaint  before  the  mayor,  for  gambling,  against 
Armstrong  and  Allen,  seems  to  have  been  made  under  an  or- 
dinance of  the  town  of  Madison,  and  one  of  the  causes  is  en- 
titled in  tho  indictment  as  The  Town  of  2Iadisoii  v.  Gllhert 
Armstrong,  and  tho  other  IVie  Town  of  JIadison  v.  Joe 
Allen. 

The  courts  may,  perhaps,  take  judicial  notice  of  the  fact 
that  the  town  of  Madison  is  an  incorporated  town,  under  the 
general  statutes  enacted  for  the  purpose  of  incorporating  cities 
and  towns.  But  they  cannot  take  cognizance  of  the  ordi- 
nances passed  under  and  by  virtue  of  such  incorporation.  They 
arc  subjects  of  proof.  There  is  no  evidence  contained  in  the 
record  that  either  Armstrong  or  Allen  Avere  guilty  of  the 
breach  of  any  ordinance  of  the  town  of  Madison,  or  that  they 
were  either  of  them  on  trial  for  the  breach  of  any  municipal 
law.  Unless  they  were  tried  for  such  a  breach  of  municipal 
law,  the  mayor  could  not  have  had  jurisdiction,  and  conse- 
quently this  plaintiff  in  error  could  not  have  been  guilty  of 
perjury,  for  the  reason  that  the  oath  must  be  administered  by 
one  having  legal  authority.  Otherwise  there  is  no  perjury 
in  false  testimony  given  under  it.  The  indictment  and  the 
record  are  silent  upon  the  subject  of  such  an  ordinance.    The 


4n 


AMERICAN  CRIMINAL  REPORTS. 


fact  that  it  existed  should  have  been  alleged  in  the  indictment, 
and  the  proof  of  it  should  have  appeared  in  the  evidence. 
Lawrenoe  v.  The  State,  2  Tex.  Ct.  App.,  479. 
The  judgment  is  reversed. 


United  States  v.  Landsbero. 

(23  Fed.  R.,  585.) 

PEiuunY:  Material  matter. 

Perjury — Denial  of  having  been  in  prison  is,  if  paij5e. — Whoro  a  party 
accu8c;l  of  criino  testifies  on  cross-exaiuiiiation  hefoiv  a  Uiiiteii  States 
conimiasioncr  tliat  he  liail  never  been  in  prison,  wlien  tlie  fact  was  that 
he  had  been,  Hiieh  false  answer  amounts  to  "material  matter"  witliin 
the  meaning  of  R.  S.,  sec.  5392,  and  ia  indietablo. 

Circuit  Court  of  the  United  States,  Southern  District  of  New 
York. 

J.  G.  Agar,  assistant  United  States  attorney,  for  the  United 
States. 
li.  N.  Walte,  for  defendant. 

Before  Wallace,  Benedict  and  Brown,  J  J. 

Benedict,  J.  The  accused  having  been  convicted  of  perjury, 
now  moves  for  a  new  trial  and  in  arrest  of  judgnuMit.  Tlio 
principal  question  presented  for  determination  is  Aviujthor  the 
crime  of  perjury  was  committed  l)v  the  accused  when  ho  niiulc 
the  false  statement  under  oath  which  is  set  forth  in  tlio  indict- 
ment. This  statement  was  made  under  the  following  circum- 
stances, as  shown  at  the  trial:  The  accused  had  been  arrested 
by  virtue  of  a  commissioner's  warrant  upon  the  charge  of  hav- 
ing uttered  counterfeit  coin.  lie  demanded  an  examination, 
and  u{)on  such  examination  duly  held  before  the  commissioner 
he  offered  himself  as  a  witness  in  his  own  behalf  and  was  duly 
sworn  as  such.  Upon  his  cross-examination,  in  answer  to  a 
question  put  without  objection,  he  testified  that  he  had  not 
been  in  prison  in  this  state  or  any  other  state,  when  the  fact 
was  that  he  had  been  imprisoned  in  the  state  prison  of  this 
state,  and  also  in  the  state  prison  of  New  Jersey.    Thereafter, 


UNITED  STATES  v.  LANDSBERO. 


:ti> 


■ 


the  present  indictment  Avas  found  against  him,  in  Avliicli  the 
j)orjury  assignod  is  the  testifying,  under  the  circumstances 
iibovo  stated,  that  ho  never  was  in  prison  in  this  state  or  any 
other  state. 

Oil  the  jM-rt  of  the  accused  tlio  point  made  is  that  tho  false 
nuitter  so  stated  by  tho  accused  before  tlio  commissioner  was 
not  nuiterial  matter,  witliin  the  meaning  of  the  statute,  and, 
therefore,  tho  crime  created  by  the  statute  was  not  committed. 

An  essential  clement  of  tho  otfensf^  created  by  the  statute 
(section  r>;5J)2,  II.  S.)  is  tho  materiality  of  tho  matter  charged 
to  have  been  falsely  stated.  The  words  employed  in  the  stat- 
ute are  "nuiterial  matter."  Those  words  were,  doubtless, 
adopted  from  the  common  law,  and  thoy  must  be  given  a  sig- 
nilication  broad  enough  to  cover  at  least  cases  of  i)erjury  at 
conuncm  law.  Tho  rule  of  the  common  law,  in  regard  to  ])er- 
jury,  is  thus  stated  by  Arc] i bold:  "Every  question  in  cross- 
exiunination,  which  goes  to  the  witness'  credit,  is  nuiterial  for 
this  purpose."  Archb.  Crim.  PI.  &  Proc.,  SIT  (Eng.  ed.).  Tho 
same  rule  Avas  declared  by  the  twelve  judges  in  licfj.  v.  Gih- 
W.V,  9.Cox,C.  C,  105. 

The  in(]uiry  hero,  therefore,  is  Avhethor  the  imprisonment  of 
the  accused  in  this  state  and  in  IS^ew  Jersey  was  calculated  to 
injure  his  character  and  so  to  impeach  his  credit  as  a  Avitness; 
for  it  is  not  to  bo  doubted  that,  Avhen  the  accused  oiFered  him- 
self as  a  Avitness,  he  placed  himself  upon  the  same  footing  as 
any  other  Avitness,  and  was  liable  to  be  impeached  in  liie  same 
manner.  Upon  this  question  our  opinion  is  that  the  matter 
stated  by  the  accused  as  a  witness  had  an  obvious  bearing  upon 
the  character  of  the  Avitness,  and  could  properl}^  bo  considered 
by  the  commissioner  in  determining  Avhat  credit  Avas  to  bo 
given  to  the  testimony  of  the  Avitness  in  respect  to  the  crime 
with  Avhich  ho  stood  charged.  In  liefj.  v.  Lnveij,  3  Car.  *fe  K., 
'in,  the  accused,  Avhen  a  Avitness,  had  falsely  sworn  tliat  she  had 
never  been  tried  in  the  Central  criminal  court,  and  had  neA'or 
been  in  custody  at  tho  Thames  jwlice  station.  On  her  trial  for 
perjury  these  statements  Avero  ruled  to  be  material  nuitter,  and 
the  conviction  Avas  sustained.  In  Com.  v.  Bonder,  97  Mass., 
587,  a  Avitness  had  been  asked  "  if  ho  had  been  in  the  house  of 
correction  for  any  crime."  Objection  to  tho  question  on  the 
ground  that  the  record  Avas  the  best  evidence  Avas  AvaiA-^ed,  and 


476 


AHIERICAN  CRimXAL  REPORTS. 


the  case  turned  upon  the  materiality  of  the  question.  The 
matter  was  held  to  be  material.  The  present  case  is  stronger, 
for  here  no  objection  wliatever  was  interposed  to  the  inquiry 
respecting  the  imprisonment  of  the  accused.  Having  made  no 
objection  to  tie  inquiry,  and  gained  all  the  advantages  to  bo 
secured  by  his  false  statement,  it  may  perbaps  be  tliat  it  dt-'s 
not  lie  in  liis  mouth  now  to  say  that  his  statement  was  not 
material.  See  lierj.  v.  Gihhons,  svjfra;  Reg.  v.  ^lullanij,  Leigh 
&  C,  503.  But,  however  this  may  be,  it  is  our  opinion  that 
tlie  statement  he  made  was  material  matter,  within  the  moan- 
ing of  the  statute,  because  calculated  to  affect  his  credit  as  a 
witness. 

The  otlier  points  discussed  have  received  our  attention,  and 
are  thought  to  be  untenable.  They  are  not  such  as  require 
attention  in  this  opinion.     The  motions  are  denied. 


The  PEorr.i:  v.  !Morax. 

(-18  Mich.,  639.) 

Practice:  Additional  icitncsscs pluccd  on  information. 

The  indorhkmknt  upon  an  information,  after  going  to  trial,  of  the  names 
of  additional  witnesses,  is  giound  for  a  new  trial,  if  done  without  leave 
of  court. 

Exceptions  before  judgment  from  Recorder's  Court  of  De- 
troit. 

Information  for  burglary. 


lint. 


Jacob  J.  Van,  JUper,  attorney -general,  for  the  people 
John  C.  Donndbj  (Jh'ennan  &  Donnelly),  for  defenda 

On  filing  the  information  the  prosecuting  attorney  indoi'scd 
on  the  information  the  names  of  certain  witnesses,  and  when 
the  case  came  on  for  trial  and  l)eft)re  the  trial  was  entered  u[)(tii 
or  jury  called  he  indorsed  on  the  inf()rmation  the  names  of  a 
number  of  other  witnesses.  This  was  done  without  any  appli- 
cation to  or  ])ermission  from  the  court.  On  the  trial  theso 
witnesses  wei*c  called  on  behalf  of  the  people  and  the  defend- 


WOODSON  V.  THE  STATE. 


m 


ant's  counsel  objected  to  their  being  sworn.     The  objection 
was  ovt  Tilled  and  tlie  witnesses  were  examined. 

The  coiu't  held  that  the  case  came  Avithin  the  ruling  of  Peo- 
ple V.  JMl,  48  Mich.,  482  (4  Amer.  Cr.  Eep.,  000),  with  refer- 
ence to  the  indorsing  the  names  of  witnesses  on  the  information, 
and  directed  a  new  trial. 


United  States  v.  IIathilton'. 
(109  u.  s.,  m.) 

Practice;  Certificate  of  division  —  Motion  to  quash  —  Discretion  of  court. 

On  certificate  of  division  of  opinion  between  tlie  judges  of 
the  circuit  court  of  the  United  States  for  the  middle  district 
of  Tennessee. 

3Ir.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  certificate  of  division  in  this  case  was  made  on  a  di- 
vision in  opinion  between  the  judges  on  a  motion  to  quash 
the  indictment.  As  a  motion  to  quash  is  always  addressed 
to  the  discretion  of  the  court,  a  decision  ujHm  it  is  not  error, 
and  cannot  be  reviewed  on  a  writ  of  error.  In  the  case  of  United 
States  V.  Iioxcnhurgh,  7  Wall.,  h%%  avc  decided  tlie  precise  point 
that  this  court  cannot  talce  cognizance  of  a  division  of  opinion 
between  tlic  judges  of  a  circuit  court  upon  a  motion  to  quash 
an  indictment.  This  decision  was  reatiirmed  in  United  States 
V.  Avery,  13  Wall.,  251,  and  in  United  States  v.  Canda,  de- 
cided at  October  term,  1881. 

The  case,  not  being  properly  before  us,  is  dismissed. 


' 


WooDsox  V.  The  State. 

(19  Fla.,  549.) 

VRfLdiCE:  EscajKil  convict. 

An  apprllate  court  will  dismiss  appeal  of  escaped  cojtvict.— An 
appellate  court  will  refuse  to  hear  a  criminal  case  on  a  writ  of  error 
where  the  plaintiflE  in  error  has  escaped  and  is  not  within  the  control  of 
the  court  below,  either  actually,  by  being  in  custody,  or  constructively, 
by  being  out  ou  bail. 


478 


AMERICAN  CRDHNAL  REPORTS. 


2.  Same. —  On  a  motion,  where  it  appeared  to  the  court  fli.at  the  plaintiff  in 
error  liad  broken  jail  and  escaped  from  custody,  leaving  his  cansc 
pemling  in  court :  Ordered:  That  the  writ  of  error  be  disniisseil  at  tlio 
next  term  of  the  court,  unless  it  is  made  to  appear  to  the  court  on  or 
before  that  time  that  the  plaintiff  in  error  is  in  the  custody  of  tlie 
proper  officer  of  the  law. 

Motion  to  dismiss  writ  of  eri'or  to  the  Circuit  Coui't  for 
Franklin  County. 

T/te  Attorney- General,  for  the  motion. 
John,  W.  Malone,  contra, 

Mr.  Justice  Van  YALKEXBunan  delivered  the  opinion  of  the 
court. 

Thomas  "Woodson  was  indicted,  tried  and  convicted  of  a 
felony  at  the  spring  term  of  the  circuit  court  held  in  and  ft)r 
Franklin  county  in  May,  A.  D.  1882,  For  tlic  olfcnso  lie  was 
sentenced  to  six  montlis'  imprisonment  in  the  penitentiary. 
Afterwards  he  applied  for  and  obtained  a  writ  of  error  to  this 
court,  assigning  certain  errors  as  appearing  in  the  indictment 
as  well  as  upon  the  trial  of  the  cause.  AVhile  the  cause  was 
tlius  pending  in  this  court  he  broke  jail  and  absconded.  The 
sheriff  of  Franklin  county  certilies  to  tliis  court  that  he  broke 
jail  on  tlie  night  of  the  7th  of  June,  1882,  and  that  lie  has  no 
knowledge  or  information  of  his  whereabouts;  that  he  came 
from  Columbus,  Georgia.  The  attorney -geneial  now  moves 
that  an  order  be  made  directing  that  the  writ  of  error  bo  dis- 
missed on  the  third  Monday  of  January  next,  unless  tlie  said 
Woodson  shall,  in  the  mean  time,  surrender  himself  to  the  cus- 
tody of  the  shorilf  of  Franklin  county  or  of  the  court.  The 
rule  is  well  settled  that  an  appellate  court  will  I'ofuso  to  hear  a 
criminal  case  on  a  writ  of  error  wiion  the  plaintilF  in  error  has 
escaped  and  is  not  within  the  control  of  the  court  below,  either 
aetuallv,  bv  bcin};  in  custody,  or  constructivelv,  by  being  out 
on  bail.  In  the  case  of  The  PtapU  v.  Genet,  5!)  N.  Y.,  the 
court  in  discussing  this  (piestion  use  this  language:  "AVhen  a 
jierson  charged  with  felony  has  escaped  out  of  custody,  no 
order  or  judgment,  if  any  should  be  made,  can  bo  enforced 
against  him,  and  courts  will  not  give  their  time  to  proceedings 
which,  for  their  elfectiveness,  must  depend  upon  the  consent  of 
the  person  charged  with  the  crime."    ..."  All  the  cases 


RICHARDSON  v.  THE  COMMONWEALTH. 


479 


which  consider  the  question  seem  to  concur  in  the  view  that  an 
escaped  prisoner  cannot  take  any  action  before  the  court."  In 
Common ivealth  v.  Andrews,  97  Mass.,  543,  Bigelow,  C.  J., 
speaking  for  the  court,  says:  "Tlie  defendant,  by  escaping 
from  jail,  where  he  was  held  for  tlie  purpose  of  prosecuting 
these  exceptions,  and  abiding  the  judgment  of  tlie  court 
thereon,  has  voluntarily  withdrawn  himself  from  the  jurisdic- 
tion of  the  court.  He  is  not  present  in  person,  nor  can  he  be 
heard  by  attorney.  A  hearing  would  avail  nothing.  If  a  new 
trial  should  be  ordered,  he  is  not  here  to  answer  further;  if  the 
exceptions  are  overruled,  a  sentence  cannot  be  |)ronounced  and 
executed  upon  him."  The  supreme  court  of  the  United  States, 
in  Smith  v.  United  States,  94  U.  S.,  97,  adopted  the  same  rule, 
holding  that  the  court  will  refuse  to  hear  a  criminal  caso  unless 
the  convicted  party  suing  out  the  writ  of  error  is  whore  he  can 
be  made  to  respond  to  any  judgment  which  may  be  rendered. 
See,  also,  Sherman  v.  The  Commonwealth,  14  Grattan,  077; 
Zeftwiehv.  The  Commomvealth,  20  Grattan,  710;  Anoni/nious, 
31  j\[c.,  .592.  See,  also.  The  People  v.  liedinger,  55  Cal,  290, 
where  the  authorities  are  all  cited  and  the  question  fully  dis- 
cussed. 

The  motion  of  the  attorney-general  is  granted,  and  an  order 
will  be  entered  that  the  writ  of  error  be  dismissed  on  the  third 
Morulay  of  January  next,  unless  it  shall  bo  made  to  appear  to 
this  court,  on  or  before  that  day,  that  the  said  plaintiff  in  error 
is  in  custody  of  the  sheriff  of  Franklin  county  or  other  proper 
officer  of  the  law. 


RicnAKDSoN  V.  The  Commonwealtk. 

(70  Va.,  1007.) 

Practice:  Grand  juries  —  Intoxicating  liquors  —  Sale  hy  the  gallon. 

Plea  in  abatement. — A  pica  in  abatement  will  not  lie  to  an  indictment 
for  that  the  court,  if  a  suflicient  number  of  the  jurors  summoned  are 
not  in  attendance,  causes  tlie  required  number  to  be  returned  from  the 
couutij  (it  large.  Nor  for  tliat  two  or  more  of  the  gi'and  jury  which 
foiuid  the  indictment  had  served  on  another  grand  jury  at  the  same 
term.  How  they  voted  on  the  indictment  as  members  of  the  first  grand 
jury  could  not  properly  be  inquired  into.    Nor  for  that  the  sheriff  or 


480 


AMERICAN  CRIMINAL  REPORTS. 


his  deputy  were  in  the  grand  jury's  room  when  they  were  deliboratin(» 
and  examining  witnesses  upon  whose  testimony  the  indictment  waa 
found. 
3.  Sai^  bv  the  gallon  — Deltverv  in  rARCEl^,— At  trial  of  indictment 
founded  on  a  statute  proliibiting  the  sale  of  liquor  by  retail  in  quantities 
less  than  one  gallon,  the  jury  asked  of  the  court  the  question:  "As  a 
distiller,  has  the  defendant  a  right  to  sell  one  gallon  of  liijuor,  and 
receive  pay  therefor,  and  deliver  it  in  less  (|uantities  at  dilTorent  times?" 
To  which  the  jury  received  for  answer,  "  The  court  doth  instruct  tho 
jury  that,  to  constitute  a  i,;ile  by  tho  gallon,  there  muKt  bo. a  sale  and 
delivery  to  the  buyer  of  an  entire  gallon;  that  a  contract  for  a  gallon, 
and  the  delivery  of  the  same  in  parcels  at  dilTerent  times,  is  a  violation 
of  the  law.  Held:  The  instruction  correctly  expounded  the  law.  Salts 
of  liquor,  in  the  mode  suggested  in  the  question  of  the  jury,  would  bo 
mere  shifts  to  violate  tho  statute. 

Bohert  A.  Richardson,  for  the  a]>pellant. 

F.  S.  Blah',  attorney -general,  for  the  commonwealth. 

AxDKUsox,  J.,  delivered  the  opinion  of  the  conrt. 

The  court  is  of  opinion  that  there  is  no  error  in  therulinp^of 
the  court  below  rejecting  the  first  plea  in  abatement.  The 
statute  expressly  authorizes  and  recpiires  the  court,  if  a  sutfi- 
cient  number  of  tlie  jurors  summoned  are  not  in  attendance  to 
constitute  a  grand  jury,  to  cause  a  sulficient  number  to  bo  re- 
turned from  the  bystanders,  or  from  the  county  or  corporation 
at  large.  They  may  be  summoned  from  a  list,  but  tiu^  Judge, 
if  he  thinks  jn-oper,  is  ex]m>ssly  authorized  to  dispense  with  tiie 
list.    Code  of  1873,  ch.  200,  §  5. 

The  court  is  further  of  opinion  that  the  court  did  not  err  in 
rejecting  the  defendant's  second  plea  in  abatement.  The  fact 
that  two  of  tlie  jurors  who  were  mend)ers  of  the  grand  jury 
which  found  the  indictment  against  the  defendant  had  served 
on  anotlier  special  grand  jury  at  the  same  term  of  the  couit 
did  not  disqualify  them  to  serve  upon  the  grand  jury  which 
found  the  indictment.  How  they  voted  upon  the  indictment 
as  members  of  the  former  grand  jury  was  a  matter  which  could 
not  be  properly  inquired  into. 

The  court  is  further  of  opinion  that  there  is  no  error  in  the 
ruling  of  the  court  below  rejecting  tho  defendant's  thii-d  ])left 
in  abatement.  There  is  no  case  that  we  are  aware  of  which 
has  held  that  the  indictment  by  a  grand  jury  is  vitiated  merely 
because  the  sheriflf  or  his  deputy  were  in  their  room  while  they 


RICHARDSON  v.  THE  COMMONWEALTH 


Avere  doliberating  and  examining  witnesses  upon  whose  testi- 
mony tlie  indictment  was  found.  They  are  olhcers  in  attend- 
ance u})on  the  grand  jury,  and  in  the  performance  of  their 
(Uities  it  is  often  necessary  for  them  to  enter  the  grand  jury 
room,  and  it  may  he  whilst  they  are  engaged  in  deliberating 
or  hearing  testimony  on  the  case  before  them.  There  is  no 
averment  or  intimation  in  the  plea  that  they  excited  or  at- 
tcmj)tcd  to  influence  the  jury  in  any  way  in  the  formation  of 
their  opinions. 

After  the  jury  had  retired  to  consider  of  their  verdict,  they 
sent  into  the  cou**  he  following  question:  "  As  a  distiller, has 
the  defendant  a  right  to  sell  one  gallon  of  liquor,  receiving 
pay  therefor,  and  delivering  it  in  less  quantities  at  different 
times?"  The  court  called  the  jury  in  and  gave  them  the  fol- 
lowing instruction:  "The  court  doth  instruct  the  jury  that  to 
constitute  a  sale  by  the  gallon,  there  must  be  a  sale  and  de- 
livery to  the  buyer  of  an  entire  gallon  —  that  a  conti'act  for  a 
gallon,  and  the  deliveiy  of  the  same  in  parcels  at  different 
times,  is  a  violation  of  the  law."  To  the  giving  this  instruc- 
tion to  the  jui'v  the  defendant  exce))ted,  and  his  bill  of  excep- 
tions was  signed,  sealed  an<l  made  a  ])art  of  the  record. 

l>y  section  I  of  act  ai)proved  March  8,  1880,  that  no  person 
shall  sell  wine,  ardent  spirits,  etc.,  within  the  limits  of  this 
commonwealth,  either  by  wholesale  or  retail,  or  to  be  drunk  at 
the  place  where  sold,  or  in  any  other  way,  without  having 
first  obtained  license,  and  then  only  in  the  manner  thereinafter 
provi*' 'd  in  said  act;  and  by  secticm  1'2  of  the  same  act,  a 
liceuse*!  distiller  or  manufacturer  of  alcoholic  liquors,  on  the 
payment  of  his  specific  license  tax,  "shall  have  the  privilege 
of  selling  the  ))roducts  of  his  distillations  in  quantities  not  less 
than  one  gallon,  at  any  j)lace  within  the  state  of  A'irginia." 
The  distiller,  then,  has  the  privilege  of  selling  in  no  other 
way  —  that  is,  in  quantities  not  less  than  one  gallon. 

It  was  evidently  the  design  and  i)ut'pose  of  the  legislature 
to  so  i»rovide  that  distilleries  should  Jiot  be  a  place  of  resort  for 
idlers  and  drunkards  and  tipi)lers  to  procure  ardent  spirits  for 
immediate  use,  and  which  would  be  promotive  of  di-unkenness, 
and  lead  to  disorder  and  disturbances  of  the  |)eace,  whilst  the 
legitimate  wants  of  sober  people  should  not  be  denied,  it  gave 
to  the  distiller,  who  had  i)aid  his  license  tax,  the  pi-ivilege  of 
Vol..  IV  — ;n 


4S2 


AMERICAN  CRIMINAL  REPORTS. 


1  JT 


selling  in  quantities  of  not  less  tlian  one  gallon.  But  the  pur- 
pose of  the  law  would  be  defeated  by  the  interpretation  tiiat 
the  distiller  might  contract  to  sell  to  a  party  a  gallon  of 
whiskey  and  mete  it  out  to  him  in  small  quantities,  an.},  of  a 
pint  or  half  pint  at  a  time,  as  he  might  call  for  it.  AVe  are  of 
opinion  that  such  sales  of  spirituous  liquor  would  bo  more 
dhifts  to  violate  the  statute. 

In  State  V.  Poteet,  SG  N.  C,  012,  one  received  sundry  drinks 
of  spirituous  liquor  in  payment  of  a  debt — the  seller  to  have 
credit  for  each  drink  until  the  debt  was  satislied.  Held  a  vio- 
lation of  the  statute  against  retailing  in  quantities  less  than  a 
quart  without  license.  The  court  observed  that  the  instruction 
given  the  Jury  by  the  court  is  fully  sustained  by  the  decision  in 
State  V.  Klrkham,  1  Ired.,  381:  the  facts  of  which  were  that 
the  defendant  was  applied  to  by  the  prosecutor  to  purchase 
some  spirituous  liquor;  the  defendant  told  him  he  could  not 
sell  less  than  a  quart.  The  prosecutor  agreed  to  purchase  a 
quart,  provided  the  defendant  would  permit  him  to  take  it  in 
small  quantities,  as  he  might  want  it,  until  the  quart  was  taken ; 
to  which  defendant  agreed.  During  that  day  the  prosecutor 
took  three  half-i)ints,  and  some  twelve  months  or  more  there- 
after he  got  the  other  half-pint,  and  paid  for  the  quart.  It 
was  held  that  this  was  a  violation  of  the  law  prohibiting  the 
sale  of  spirits  by  the  small  measure  without  a  license. 

The  court  is  of  opinion  that  there  is  no  error  in  the  instruc- 
tions given  by  the  court  below  to  the  jury  in  the  case  in  hand. 

Upon  the  whole  the  court  is  of  opinion  to  alllrm  the  judg- 
ment of  the  court  below. 

Judgment  ajjlnned. 


TnE  State  v.  Steisiqek. 

(61  Iowa,  633.) 
PnAcncE:  Indictment  — Copy. 


Wlien  an  inrlictment  is  lost  or  miKlaid,  aftor  arrai;::nment  of  tlio  accused, 
the  court  has  power  to  substitute  a  copy  and  prcK-eed  to  trial  upon  tho 
record  thus  mode,  the  same  as  upon  the  original  indictment. 


ROOKS  V.  THE  STATE.'  433 

C.  W.  Kirl'patrich,  for  appellant. 

Smith  McPherson^  attorney -general,  for  the  stato. 

RoTiinocK,  J.  In  the  case  of  The  State  v.  liivers,  58  Iowa, 
102,  it  was  hold  that  wliere  an  indictment  had  been  lost  or  mis- 
laid after  the  arraignment  of  the  accused,  it  was  within  tho 
power  of  the  court  to  substitute  a  copy  and  proceed  upon  the 
record  thus  made  the  same  as  upon  an  original  indictment.  It 
is  claimed  in  this  case  tluit  there  was  no  proper  evidence  that 
the  paper  offered  as  a  copy  was  a  true  copy  of  the  original  ia- 
dictmont.  It  is  true  the  record  does  not  show  that  the  copy 
was  ccrtillcd  to  be  a  true  copy  by  the  clerk  of  the  court.  But 
it  appears  that  the  original  was  in  the  files  of  the  court  during 
all  the  in'climinary  proceedings,  and  the  evidence  showed  that 
the  paper  presented  was  a  true  copy.  This  evidence  was  in  no 
way  controverted  or  denied.  The  court  found  it  to  be  a  copy 
upon  such  evidence,  and,  for  aught  that  appears,  the  evidence 
offered  was  the  best  evidence  which  was  obtainable.  No  othcar 
question  is  presented  in  the  case. 

Affirmed. 


Rooks  v.  The  Statk 

(C5  Ga.,  330.) 

VnAcncE:  Separating  witnesses — Venue. 

1.  DlfiOREDIKNCE  TO   RULE   SEPARATINO,   RENDERS  WITNESS  axm^':  7  OP  COW- 

TEMPT,  BUT  NOT  INCOMPETENT. — Wliile  we  think  it  a  sound  rule  of  pra»- 
ticc,  in  putting  witnesses  under  the  rule,  to  swear  all  of  them  on  both 
sides  and  send  them  out  of  hearing  until  called  to  testify,  still  we  know 
of  no  law  which  renders  a  witness  in<'0Tui)etent  because  he  has  heard 
Bome  of  the  testimony  on  the  side  omxised  to  that  on  which  he  was 
called.  It  might  be  a  ground  to  attach  the  witness,  but  not  to  exclude 
him. 

2.  In  a  criminal  case  the  venue  must  be  proved  beyond  a  reasonable  doabtk 


Before  Judge  Speer,  Monroe  Superior  Court. 

Berner  cfe  Turner  and  IT.  C  Peeples^  for  plaintiff  in  error. 
F.  D.  Dismuke,  solicitor-general,  and  Stvtoart  i&  JIall,  for  the 
state. 


484 


AMERICAN  CRIMINAL  REPORTS. 


Crawford,  Jistice.  Homy  Rooks  was  convicted  of  ma- 
licious mischief  in  the  court  below,  and  by  his  bill  of  exceptions 
claims  that  the  errors  committed  entitled  him  to  a  new  trial. 
He  submits : 

1.  That  Robert  Lyon,  a  witness  for  liim,  was  not  ])ermitted 
to  testify  in  his  behalf,  because,  after  havin<>;  been  sworn  and 
"  put  under  the  rule,"  he  was  present  in  the  court  room  and 
heard  the  testimony  of  the  witnesses  on  the  part  of  the  state. 

The  law  is  that  "  in  all  cases  either  party  has  the  right  to 
have  the  witnesses  of  the  other  party  examined  out  of  the 
bearing  of  each  other."  Whilst  this  is  the  rule  of  law  upon 
this  subject,  yet  it  is  the  practice  of  the  courts,  whenever  re- 
quested, to  have  all  the  witnesses,  both  for  the  state  and  the  ac- 
cused, called  in  and  sworn,  and  then  instructed  to  retire  beyond 
the  limits  of  the  court  room,  and  there  remain  without  com- 
munication with  any  one  as  to  what  may  have  been  sworn  in 
the  case,  until  they  are  called  to  the  stand  themaelvcs  to 
testify. 

We  recognize  this  as  a  sound  rule  of  practice,  and  think  that 
the  court  should  take  proper  care  to  effect  this  object  as  far  as 
practicable  and  convenient;  yet  we  know  of  no  legal  riglit  ex- 
isting in  one  party  to  have  a  witness  excluded  from  the  stiind 
because  he  happened  to  be  present  when  the  witnesses  of  the 
other  party  were  testifying.  Nor  do  we  think  that  the  court 
itself  should  go  to  the  extent  of  depriving  a  party  of  the  testi- 
mony of  his  witness,  because  that  witness  has  disobeyed  tlie 
order  given  touching  his  presence  in  the  court  room  at  an  im- 
proper time.  At  most  it  was  only  an  irregularity,  and  nuiy 
have  amounted  toa  contemj^t  for  which  the  witness  might  have 
been  lined;  but  to  e,rrhi<lc  him,  might  deny  the  ])arty  of  tlie 
testimony  of  the  only  person  in  the  world  by  whom  he  could 
prove  his  innocence.  Such  is  not  law.  Code,  §  o8<!;{;  27  Ga., 
288. 

2.  ft  is  claimed  on  this  groun<l  that  the  verdict  is  contrary  to 
law,  because  it  nowhere  appears  in  the  testimony  that  the 
venue  is  proven.  An  examination  establishes  the  fact  that  it 
was  not  shown  by  any  of  the  witnesses  that  the  crime,  if  com- 
mitted at  all,  was  committed  in  the  county  of  iMonroe.  No 
conviction  is  legal  unless  the  venue  is  made  to  ap|)ear  beyond 
a  reasonable  doubt;  and  a  verdict  has  been  held  contiary  to 


THE  STATE  v.  COOK. 


48S 


law  wliovo  the  testimony  does  not  show  tliat  the  offense  was 

committed  in  the  county  wliere  the  defen(hint  was  tried.    48 

Ga.,  43;  5(5  id.,  30;  Moi/e  v.  The  State,  September  Term,  1880 

(05  Ga.,  754). 

Judgment  reversed. 


Peoi'lk  v.  Floue3. 

(04  Cal.,  420.) 

PRA(moE :  Information. 


Wlion  tbe  insertion  of  an  niinocfssary  word  in  an  infomiation  does  not 
tend  r,o  the  prejudice  of  tlie  defendant,  and  does  not  prejudice  the  in- 
formation or  tiie  description  of  tlie  offense,  it  should  be  disregarded. 
Penal  Code,  g§  900,  1404. 

AiUmuy-G encral  Mnrxhall  and  Dhtrlct  Attorney  Farrar^ 
for  appellant. 

S.  W.  Gels  and  Ostrander  cfi  Knox,  for  respondent. 

McKkk,  J.  Eliminating  from  the  information  the  word  "  ac- 
commodation," the  description  of  the  otfense  charged  against 
the  defenihmt  was  unol)jectional)le.  It  may  be  conceded  that 
the  word  1  as  no  common  acce])tation;  it  was  therefore  useless 
in  connection  with  the  charge;  and  as  its  insertion  in  the  in- 
formation did  not  tend  to  the  pi-ejudice  of  the  defendant,  in 
respect  to  a  sulistantial  right,  and  did  not  prejudice  the  infor- 
mation nor  the  description  of  the  otfense,  it  should  have  been 
disregai-ded.     Sections  OOO,  14*i4,  Penal  Code. 

Jutlgment  reversed  and  cause  remanded  with  instructions  to 
overrule  the  demurrer. 


The  State  v.  Cook. 

(30  Kan.,  83.) 

Practice:  Evidence  — Intoxicating  liquors. 

1.  COUKT  MAY  PKUMIT  NAMES  OP  ADDITIOXAL  WITNESSES  TO  BE  PLACED  OH 
iXFOiiMATioN.—  It  is  within  the  discretion  of  the  court  to  permit  the 
name  of  a  witii'  s.  known  to  the  prosecutmg  attorney  at  the  time  of 


486 


AMERICAN  CRllMINAL  UEPOHTS. 


Gio  DliriK  i>r  the  information,  to  bo  indorsed  thorpon  nftcr  tlio  ronimcnoo- 
mont.  of  1 1'  trial,  and  to  |)i^rinit  Hiit;h  witnow  to  testify  <>ii  tlio  part  of 
tlio  stalo  ill  a  criminal  proaouutiim  over  dofendant's  objection, 
t.  Secondary  evidence  held  incomi'ktent  to  show  defendant  had  no 
PEKMiT. —  In  a  criminal  prosecution  against  a  dt.'fendaiit  forsellinj;  in- 
toxicatinj^  liipiors  without  taking  out  or  having  a  permit,  tho  county 
attorney  ti'stilled  that  he  was  ac(|uainto.l  with  tho  probate  Jnd'^c?  of  tho 
county;  that  he  understood  Im  wjui  absent  from  home;  that  the  book 
which  ho  [iroduced  was  the  joinnal  of  permits  l.ept  by  the  i)robate 
judge;  tiiat  it  contained  all  the  druggists'  permits  issued  by  the  i)robato 
judge;  that  he  had  looked  into  tho  other  journals  kept  by  tho  i)ro- 
bate  judge,  and  had  been  unable  to  llnd  any  reconl  of  permits  therein; 
tliat  he  hail  freipiently  licard  tho  probate  ju<lge  testify  in  licpior  cases 
tliat  all  of  tho  records  of  permits  were  kept  in  the  book  produced  by 
iiiui ;  that  the  probate  judge  had  another  journal  in  which  he  ke|)t  a 
record  of  the  business  of  liis  court;  that  he  went  into  the  office  of  tlio 
probate  judge  and  got  tho  Ikio'.c  wlien  the  judge  wiis  not  there;  that 
there  were  other  journals  in  his  ollico;  that  tho  l)ook  contained  nothing 
but  blanks  for  recording  druggists'  permits,  and  thereupon,  against  the 
Cfcjection  of  tlio  defendant,  the  court  permitted  such  buuk  or  jouiual  of 
Itermits  to  be  iutroduced  in  evidence.    Jlckl  error. 

Error  irom  A7yaTi(lotto  County. 

Duchan  cf?  Gray  and  Tfale  tG  M'dlet%  for  appellant. 
W.  A.  JohiiHf.o)i,  attornoy-ooncral,  for  the  state. 

EToRro.v,  C.  J.  Tho  defendant,  Lawson  Cool:,  was  cliarged 
With  bavin<j  sold  intoxicating  liquors  witljout  takin;^-  out  and 
having  a  permit,  as  provided  in  tho  proliibitory  act  of  18S1. 
IIo  Wiis  convicted  of  tho  offense  alleged  against  him,  and  ad- 
judged to  pay  a  fine  of  $1U0  and  the  costs.  lie  brings  the  case 
here  by  api)eal. 

1.  The  lirst  assignment  of  error  is  in  auowing  the  name  of 
tho  county  attorney,  one  Gibson,  to  be  indorsed  u[)on  the  in- 
formation after  the  commencement  of  the  trial,  and  to  tho 
admission  of  stiid  (libson  as  a  witness  on  the  part  of  the  state. 
"When  the  defendant  ol)jected  to  the  rorpiest  for  the  name  of 
this  witness  to  bo  indorse;!  upon  the  information  the  witness 
gtated  to  the  court  that  he  had  not  expected  to  bo  used  as  a 
witness  at  the  time  of  liling  the  infonnation;  that  up  to  a  short 
time  before  the  commencement  of  the  trial  he  lia<l  su])posed 
that  he  could  prove  the  facts  within  his  knowledge  by  K.  E. 
Cable,  whoso  name  was  indorsed  as  a  witness  upon  the  infor- 
mation, but  he  had  discovered  that  II.  E.  Cal)lo  had  not  been 


Tin:  STATE  y.  COOK. 


487 


.s!i1n)a'n:io(l,  and  was  then  outside  of  the  jurisdiction  of  th') 
coui't,  Tlie  court  thereupon  allowed  the  name  ol'  Gibson  to 
bo  indorsed  upon  the  infonnation,  and  allowed  him  to  testify* 
on  the  part  of  the  state.  It  was  witiiin  the  discretion  of  the 
coui-t  to  permit  the  name  of  the  witness  to  be  indorse<l  on  the 
infonnation,  and  to  allow  him  to  testify  over  the  defendant's 
ol)jection.  Section  C7  of  the  Criminal  Code  reads:  "Infor- 
mations may  be  tiled  during  term  time,  or  ivithin  twenty  days 
preceding  the  term,  in  any  court  having  jurisdiction  of  the 
olfense  specified  therein  (except  in  cases  of  fugitives  from  jus- 
tice, which  may  bo  liled  with  the  clerk  in  vacation)  l)y  tho 
prosecuting  attorney  of  tho  proper  county  as  informant.  IIo 
shall  subscribe  his  name  thereto  and  indorse  thereon  the  names 
of  the  witnesses  known  to  him  at  tho  time  of  tiling  the  same, 
lie  shall  also  indorse  thereon  the  names  of  such  other  wit- 
u('ss(;s  as  may  afterwards  become  known  to  him  at  such  times 
before  the  trial  as  the  court  may,  by  rule  or  otherwise,  pre- 
scribe. All  informations  shall  bo  verified  by  the  oath  of  the 
prosecuting  attorney,  comjdainant,  or  some  other  person." 

In  construing  the  ])rovisions  of  this  statute  it  was  said  in 
lS!<itt'.  P.  Dirhoii,  ('►  Kan.,  2U1):  "  l>ut,  as  we  understand  it,  there 
is  nothing  in  them  or  any  other  statute  which  would  have  tho 
elfect  of  prohibiting  a  witness  from  testifying  whoso  name  had 
become  known  to  the  prosecution  after  the  commencement  of 
the  trial,  and  without  his  name  being  indorsed  upon  the  infor- 
miition  at  all.  Nor  tlo  we  think  that  such  a  prohibition,  if  it 
did  exist,  would,  as  a  rule,  bo  calculated  to  promote  justice. 
Cases,  as  is  well  known  to  every  practitioner  at  the  bar,  often 
occur  where  during  tho  pi'ogress  of  a  trial  a  necessity  arises 
for  the  introduction  of  certain  kinds  of  testimony  which  could 
not  have  been  known  or  anticipated  on  tlie  part  of  the  prose- 
cution before  the  commencement  of  the  trial;  as,  for  example, 
if  it  siiould  bo  within  the  power  of  the  prosecution,  and  justice 
should  re(|uiro  the  impeachment  of  a  witness  sworn  on  the 
defense,  and  such  witness  had  boon  hitherto  entirely  unknown 
to  the  prosecuting  attorney.  Tn  such  a  case  the  universal 
practice  has  boen  to  call  and  examine  witnesses  without  regard 
to  their  having  been  previously  named  and  summoned,  or  even 
thought  of." 

In  State  v.  Medlicott,  0  Kan.,  257,  this  decision  was  approved, 


488 


AMi:UIC'AN  CIMMINAr.    UKPOIMS. 


and  it  was  licld  not  er.or  t(»  permit  a  witness  on  tlio  part  of  the 
state  in  a  criminal  prosecution,  wlioso  name  lias  become  known 
to  the  pi(jsecutor  after  the  commencement  of  the  iriai,  to 
testify,  even  thougli  the  name  of  tiie  witness  has  not  been 
indorsed  upon  the  information.  While  the  names  of  the  wit- 
nesses upon  the  information  will  inform  a  defendant  by  wiiom 
it  is  expected  the  char^Lje  therein  set  forth  is  to  bo  sustained, 
and  thus  enable  him,  to  some  extent,  to  prejKire  for  his  defenst;, 
uiid  while  it  is  the  duty  of  the  prosecuting  attorney  to  indorse 
upon  such  information  the  names  of  the  witnesses  known  to 
him  at  the  time  of  liling  of  the  same,  and  expected  to  be  used 
upon  the  trial,  yet  the  court,  in  the  furtherance  of  justice,  within 
its  discretion,  ou<^ht  to  have  the  power,  and,  in  our  o|)inion, 
does  have  the  ])ower,  to  ])ermit  the  name  of  any  witness  to  be 
indorsed  upon  the  information  at  any  time,  even  after  tlie  trial 
has  actually  commenced.  Said  section  07  is  not  a  condition  to 
the  qualification  of  a  witness.  As  a  j^eneral  rule,  the  court 
should  allow  the  names  of  the  witnesses  of  the  state  to  be  in- 
dorsed up(m  the  information  after  the  commencement  of  the 
trial,  if  it  be  important  so  to  do;  but.  of  course,  if  the  defend- 
ant is  taken  by  surprise  thereby,  the  court  should  extend  to 
him  all  possible  facilities  for  a  fair,  full  and  impartial  trial, 
and,  if  necessary,  may  delay  or  even  continue  the  heai'in<j;  of 
the  case  until  he  has  ample  opportunity  to  prepare  to  meet  the 
evidence  of  the  witnesses  indorsed  upon  the  information  aft(>r 
the  commencement  of  the  trial.  The  |)rosecution  ou^ht  not 
to  be  defeated  sim])ly  l)ecause  the  county  attoi'ney  does  nf»t 
indorse  the  names  of  the  witnesses  at  the  time  of  the  lilinu^  the 
information,  or  before  the  trial;  for  often,  during  tht;  ijrot^ress 
of  the  trial,  a  necessity  arises  for  the  introduction  of  evidence 
which  could  not  have  been  anticipateil  on  the  part  of  the  pi-os- 
ecution  before  the  commencement  thereof.  If  the  court  shall 
be  convinc(!d  that  the  county  attorney  had  purposely  failed  to 
indorse  on  the  information  the  names  of  the  witnesses  known 
to  him  at  the  time  of  lllin*^  the  same,  to  render  it  dillicult  for 
the  defendant  to  prepare  his  defense,  the  court  may,  un<l(!r 
such  circumstances,  within  its  discretion,  refuse  to  <j^rant  the 
recpiest  of  the  county  attorney  to  indorse  on  the  infoi-mation 
the  names  of  the  additional  witnesses;  but  in  all  cases  where 
the  request  to  indorse  the  names  of  witnesses  on  the  infoi  ma- 


TUE  STATE  c.  COOK. 


489 


tion  (lLiri?i;j;  tlie  trial  is  mado  in  good  faith,  and  to  j)ioinoto 
jii.sti(!o,  tho  court  has  tlio  authority  to  grant  tho  sanie,  ivooping 
in  view  tho  just  adnnnistration  of  the  ci-iujinal  hiws,  and  tho 
right  of  the  «lefen(hint  for  reasonalilo  time  to  prepare  to  meet 
unexpected  evichmce. 

±  The  second  and  third  errors  alleged  concern  the  admis- 
sion of  certain  evidence  given  by  tho  v.'itness  Gibson,  and  the 
pnxhiction  of  a  book  by  him,  called  the  "Journal  of  Permits." 
(iii)son  testified,  among  other  things,  that  he  was  acquainted 
with  It.  E.  Cable,  the  |)r<)bate  judge  of  Wyandotte  county; 
that  he  understood  he  was  away  from  home.  A  book  was 
then  i)resented  to  him,  and  ho  was  asked  if  he  knew  what  book 
it  w;is.  The  witnes>;  answered  ho  did.  The  (luestion  was 
tiicn  asked  what  book  it  was.  AVitness  answered  that  it  was 
the  "Journal  of  Permits"  kept  by  tho  ])rolKite  judge;  that  it 
contuined  all  the  druggists'  jx'rinits  issued  by  the  probate  judge 
of  Wyandotte  county;  that  he  had  looked  into  the  other 
jom-nals  ke[)t  by  the  probate  judge  and  had  been  unable  to 
lind  any  record  of  permits  therein;  that  he  had  frequently 
liciird  f'abh?  testify  in  licpior  cases,  and  he  had  always  testilied 
that  all  of  the  records  of  pi'ruiits  were  k('[)t  in  tliis  book. 
Thereu|)on  the  defendant  moved  the  court  to  strike  out  all  of 
this  testimony,  but  the  court  overruled  the  motion.  On  cross- 
examination  the  witness  testilied  as  follows:  "The  probate 
judge  litis  another  journid;  one  in  which  ho  keeps  a  record  of 
the  l)usiness  of  his  court.  K.  E.  Cable  is  the  custodian  of  this 
book;  I  am  not.  I  went  into  his  ollico  to-day  and  got  the 
book.  Cable  was  not  there.  There  were  other  joui'nals  in 
his  oillce.  The  one  he  kept  the  rc'cord  of  his  court  in  was 
th(>re.  This  book  contained  nothing  but  blanks  for  recording- 
druggists'  permits.''  The  defendant  moved  also  to  strike  out 
this  evidence.  This  motion  was  also  overruled,  and  the  state 
then  olFered  in  evi'V'Uce  the  book  produced  by  the  witness  as 
the  "  Journal  of  Permits."  To  the  introduction  of  this  book 
tho  (h^fendant  objected.    This  objection  was  overruled. 

Most  of  the  evidence  of  (ribson  was  wholly  incompetent; 
but  some  of  it  immaterial.  That  which  was  hearsay  was 
prejudicial.  Even  if  it  were  ])()ssil)le  for  the  witness  to  iden- 
tify the  book  produced  by  him.  he  was  not  competent  to  in- 
form the  court  or  its  contents  or  to  state  wiiat  was  co|)ied  in 


490 


A]MERICAN  CRIMINAL  REPORTS. 


the  other  journals  of  the  probate  judge,  nor  ouf:jht  lie  to  have 
testiiied  as  to  the  statements  made  by  Cable  in  other  cases. 
As  the  introduction  of  the  journal  of  permits  ^vas  ])i'cce(led 
and  based  upon  hearsay  and  incompetent  evidence,  the  boolc 
ought  not  to  have  been  received.  It  is  claimed,  however,  that 
the  county  attorney  h  a  competent  witness  to  testify  to  the  is- 
suance or  non-issuai'co  of  permits  to  sell  intoxicating  liquors, 
because  section  30  of  the  prohibitor}"-  act  makes  it  the  duty  of 
the  probate  judge,  when  application  is  made  to  him  for  a  per- 
mit to  manufacture  or  sell  such  liquors,  to  notify  the  county 
attorney,  who  is  to  appear  and  advise  with  the  probate  judge 
Avith  reference  to  tlie  issuance  of  the  permit  and  the  ai)i)r()val 
of  the  bond.  Notwithstanding  this,  the  statute  docs  not  au- 
thorize a  county  attorney  to  issue  any  permit  or  keep  the  ivc- 
ords  thereof.  If  he  sliould  advise  the  probate  judge  not  to 
issue  a  permit,  and  tiie  probate  judge,  contrary  to  his  advice, 
should  grant  the  permit,  such  permit  would  be  undoubtedly 
valid  witliin  the  statute.  Again,  if  the  probate  judge  should 
issue  a  permit  without  notifying  or  advising  tlie  county  attor- 
ney, the  permit  would  authorize  the  applicant  to  sell  intoxicat- 
ing li([Uors  for  the  ])urposo  namod  in  the  statute.  The  county 
attorney  cannot  have  jjcrsonal  knowledge  in  all  cases  of  the 
granting  of  ^icrmits,  and  he  is  not  the  jjersoa  to  te.;lify  of  his 
own  knowledge  as  to  their  issuance  or  non-issu;ir)c(>. 

In  S'afe  v.  Sjhineltn)',  27  Kan.,  IDO,  it  was  held,  where  tho 
probate  judge,  who  was  aocpiainted  with  tho  deteudant,  testi- 
iied he  had  not  issued  to  him  any  permit  to  sell  intoxicating 
liquors,  that  this  was  prhaa  fac'ie  evidence  the  defendii.it  hail 
no  permit.  This  riding  rested  upon  the  fact  liiat  the  i)roliil)- 
itory  act  casts  the  duty  resj)ecting  i)ermits  ajjon  the  ]>ei'.s()n 
holding  the  ollice  of  probate  judge,  and  provides  that  no  p^T- 
mits  can  issue  without  th.e  act  of  tho  judge.  A  coujity  attor- 
ney is  not  tho  custodian  of  the  journuls  or  ollicial  I'ccords  of 
the  probate  judge,  or  the  pi-obate  court,  and  is  not  authori/tul 
to  issue  any  permit;  and,  therefore,  the  rule  adopted  in  ISlala 
'0.  ISclnocltei',  fiuj}ra,  does  not  apply  to  a  county  attorney. 

For  tho  error  pointed  out,  tho  judgment  of  tho  district  court 
must  bo  reversed  and  the  cause  remanded  for  another  triaL 

(All  tho  justices  concurring.) 


TERRITORY  v.  SHIPLEY. 


491 


Teijritouy  v.  Siiiplkt. 

(4  Mont.,  4G8.) 

Practice:  Amtujnment  and  plea  — Indictment. 

1.  Presumed  that  defendant  was  arraigned,  etc.— Where  the  record 

dooa  not  disclose  thiit  the  prisoner  was  arraigned  and  pleaded,  the  ar- 
raignment and  plea  will  bo  presumed,  unless  there  bo  something  wliich 
aflirmatively  shows  their  absence. 

2.  Dkscuiition  of  the  stolen  property.— Where  in  an  indictment  the 

stt)len  ])roperty  is  described  as  "  sundry  bank-bills,  issued  on  the  au- 
thority of  the  United  States,  usually  known  as  '  greenbacks,'  amounting 
in  all  to  the  sum  of  OWJ,"  such  description  is  not  suflicient  to  supix>rt 
the  indictment,  or  enalile  the  jury  to  determine  that  the  stolen  chattels 
are  the  s-ame  referred  to  in  the  indictment.  The  numlier,  kind  and  do- 
nomination  of  the  bills  ought  to  be  given,  or  a  good  and  suflicient 
excuse  for  not  doing  so  set  forth  in  the  indictment. 

From  Third  District,  Lewis  and  Clarke  Counties. 

J.  K.  Toole,  for  a])})o]lnnt. 

T.  J.  Loioevij^  district  attorney,  for  respondent. 

GAMiKAiTri,  J.  Tlic  record  in  this  case  does  not  show  that 
tlic  defoncUint  was  arraiofned  and  ])loaded  to  the  indictment. 
This  is  assigned  as  one  of  the  reasons  for  the  reversal  of  tho 
judguient.  No  objection  appeal'.^  to  have  been  made  ujionthis 
ground  in  tho  court  bek)w,  anti  the  defeniUmt  was  duly  tried 
after  (Unnurrer.  AVe  cannot  reverse  the  judgment  for  the  rea- 
son alone  that  the  record  does  not  show  an  arraignment  and  a 
plea  by  the  (U'feiulant.  AVhere  the  record  docs  not,  as  in  this 
case,  disclose  such  arraignment  and  plea,  unless  there  is  some- 
thing to  show  aHirniativcly  that  tlie  defendant  was  not  ar- 
I'aigned  and  did  not  })lead,  such  arraignment  will  be  i)resumed. 
But  the  defendant  denuuTod  lo  the  indictment,  alleging,  among 
other  reasons  thoi'cfoi',  tho  following,  viz. :  "That  there  is  no 
suillcient  description  of  the  property  alleged  to  bo  stolen  to 
put  the  defendant  on  his  defense."  The  description  of  the 
property  all(>ged  to  have  been  stolen  in  tlie  indictment  was  as 
follows:  "  Suiulry  bank-bills,  issued  by  nuthority  of  the  United 
States  of  Anuu'ica.  usually  kiu)wn  as  '  greenbacks,"  amounting 
in  all  to  the  sum  of  !?IS;»,  of  the  value  of  8l^'>i"  ""'hI  sundry 
bank-bills,  issued  by  the  authority  of   tlu;   Uniteu    States  of 


492 


AMERICAN  CRIMINAL  REPORTS. 


America,  usually  known  as  '  greenUicks,'  amounting,  in  the 
aggregate,  to  $580,  of  the  value  of  $581)." 

This  description  fails  to  give  the  number,  kind,  or  denomina- 
tion of  the  bank-l)ills.  It  is  this  failure  which  it  is  claimed 
constitutes  the  insutliciency  of  the  description  of  the  i)roperty, 
and  renders  the  indictment  consequently  bad.  One  of  the 
principal  objects  to  be  accouiplished  by  an  accurate,  precise 
and  certain  description  of  ])roperty  alleged  to  be  stolen,  in  an 
indictment  for  larceny,  is  that  the  jur}'  nuiy  be  able  to  decide 
whether  the  chattel  proved  to  have  been  stoleJi  is  the  very 
same  as  that  described  in  the  indictment.  It  should,  therefore, 
be  described  with  sulficient  certaint}'  to  enabh^  the  jury  to  so 
determine.  Viewed  in  the  light  of  this  rule  the  description 
complained  of  does  not  accouiplish  this  oi)ject.  There  is  not 
such  a  certainty  of  description  as  that  a  jury  t'onld  find,  if  the 
property  should  be  proven  as  dosciibed,  that  it  was  the  very 
same  propei'ty  alleged  to  have  been  stolen  in  the  indictnient. 
A  general  description  of  the  i)ropeii:y  as  "sundiy  bank-bills, 
issued  by  authority  of  the  United  States  of  America,  usiiallv 
known  as  'greenbacks,'  amounting  in  all  t«.  sSnISO,"  or  '*in  tlio 
aggregate  to  8r)8!t,"  is  plainly  not  a  (l(.>scrij)tion  with  sullicient 
precision  and  certainty  as  to  be  a  cttm[)liance  with  the  ab:)VO 
rule.  The  description  sliouhl  also  be  such  in  an  indictment  as 
that  if  the  defendant  is  tried  he  may  be  enabled  to  plead  his 
conviction  or  acquittal  to  a  subsequent  indictment  relating  to 
the  same  pi'operty.  It  is  true  that  the  identity  of  the  property 
may  be  shown  by  other  evidence,  but  a  failure  to  propei-ly  de- 
scribe the  pro[»LM'ty  will  riMider  the  proof  of  such  idcMitity 
more  diHicult.  So  far  as  the  defendant  could  rely  upon  the 
description  of  the  property  in  this  indictment  against  a  subse- 
quent accusation  relating  to  the  same  property,  it  is  obnoxious 
to  the  objection  of  the  insulliciency  of  the  description  tiuM'eof. 

Again,  another  object  of  a  description  is  to  iiUorm  the  de- 
fendant, with  sulKcient  certainty  and  |)recision,  of  the  partic- 
ular transaction  constituting  the  olfense  witli  which  he  is 
charged,  as  that  lie  maybe  able  to  prepare  his  defense  thereto. 
We  cannot  think  that  this  obj(;ct  is  attained  where,  as  i?i  this 
case,  in  which  bank-notes  or  cnrrency  are  the  allegeil  subjects 
of  larceny,  the  description  merely  states  the  kind  of  money 
generally  and  the  aggregate  amount  thereof,  without  stating 


TEKRITOltY  V.  SHIPLEY. 


493 


tlie  nmnl>er  and  kind  or  denomination  ot  the  notes.  This  kind 
(jf  j)n)perty  is  as  susceptible  of  this  kind  of  description  as  coin 
oi  money,  and  in  such  a  case  "the  number  of  the  pieces  and 
their  (kuiomination,  and  wlietiier  of  silver  or  gold  or  copper, 
should  be  stated,  and  regularly  the  value  of  each."  Jfenoin 
r.  The  People,  2()  :Mich.,  t>08.  The  description,  therefore,  of 
the  property  does  not  comply  with  what  are  regarded  as  fun- 
damental recpiirements  in  relation  to  describing  the  property 
alleged  to  be  stolen,  in  indictments  for  larceny.  These  require- 
ments have,  as  their  ultimate  object,  fairness  towards  the  de- 
fendant. Any  desci'iption,  therefore,  -which  is  not  set  forth 
witli  suflicient  certainty  to  satisfy  the  above  requirements,  or 
assign  a  good  and  sufilcient  reason  for  the  failure  so  to  do, 
may  be  taken  advantage  of  by  demurrer.  The  facts  which 
are  thus  required  to  be  set  out  are  not  indeed  essential  con- 
stituents of  the  crime.  They  are  not  vital  to  the  accusation, 
l)eing  merely  matters  of  descri})tion.  But  where  they  are  not 
set  forth,  the  reason  for  the  non-compliance  with  these  rules 
should  be  stated  in  the  indictment.  The  allegation  that  such 
tacts  are  "unknown  to  the  grand  jury,"  when  such  is  the  case, 
would  be  an  excuse  for  such  non-compliance.  This  is  not  a 
mere  formal  allegation,  for  it  has  often  been  held  that  if  "it 
be  known  that  the  particular  fact  was  known  to  iho  grand 
jury  the  indictment  would  be  bad,  or  that  the  judgment  should 
be  arrested  or  reversed,  or  the  defendant  acquitted."  1  Bish. 
Trim.  Pros.,  I5(»n,  ;>,(I2,  and  cases  cited.  The  indictment  under 
considej'atifjn  does  not  comply  with  the  above  requirements  in. 
I'elation  to  ])recision  and  certainty  of  description,  or  assign 
any  excuse  therefor.  These  recpiirements  are,  in  our  opinion, 
reasonable,  and  not  only  do  not  conHict,  but  are  in  harmony, 
with  our  legislative  provisions  in  relati<m  to  indictments,  as  set 
forth  in  article  8  of  the  criminal  practice  act. 
Judirment  reversed  and  cause  remanded. 


40i 


AMERICAN  CRIMINAL  REPORTS. 


Wiggins  v.  People,  etc.,  in  UxAn. 

(93  U.  S,,  4C5.) 

Pkactice:  Evidence —  Uncommnnicafrd  threats. 

1.  Writ  op  ER!tOR. —  Section  3  of  the  act  of  con!j;ri'ns  of  June  23.  1874,  al- 

lows a  writ  of  error  from  the  siiinxMne  court  to  the  supreme  court  of 
the  territory  of  Utah,  in  criminal  cases,  when  the  ae(  used  has  been 
convicted  of  bigamy  or  polj'gamy,  or  has  been  sentenced  to  death  for 
any  crime. 

2.  Uncommunicated  threats  ad5iirsii!I,e  under  c'i;rtain  circujistances.— 

In  a  tri.il  for  homicide,  whert;  the  quo;tii>n  is  as  to  wliat  was  deceiused's 
attitude  at  tlie  time  of  the  fatal  encounter,  recent  threats  may  hcconio 
relevant  to  show  that  this  attitude  w.as  one  liostilo  to  the  defendant, 
even  thou>:;li  such  tln-ents  were  not  cojnnuiiiiciited  to  defendant.  Tlio 
evidence  is  not  relevant  to  sliow  the  »//'(>  aniiiio  of  the;  defendant,  but  it 
may  bo  relevant  to  sliow  th.at,  at  the  time  of  the  meeting,  the  deceased 
was  seeking  defendant's  life. 


Error  to  the  Supreme  Court  of  the  Territory  of  Utah. 

Mr.  George  IT.  WlUiam!^,  for  the  plaintiff  in  error. 
Mr.  Solicitor-General  PhiUijJS,  contra. 

Mr.  Justice  MiLu:n  delivered  the  opinion  of  the  court. 

Section  3  of  the  act  of  congress  of  June  23,  ISTl  (18  Stat., 
254r),  allows  a  writ  of  error  from  this  court  to  the  supreme 
court  of  the  territory  of  Utah,  where  the  defendant  has  been 
convicted  of  bigamy  or  iiolygamy,  or  has  been  sentenced  to 
death  for  any  crime.  The  present  writ  is  brought  under  that 
statute  to  obtain. a  review  of  a  sentence  of  death  agiiiust 
plaiutiir  in  error  for  the  murder  of  John  Ki-amer,  commonly 
called  Dutch  John,  in  Salt  Lake  City.  The  only  error  insisted 
upon  by  counsel,  who  argued  this  case  orally,  was  the  rejection 
of  testimony  offei'cd  by  the  prisoner,  as  shown  by  the  follow- 
ing e.Ktract  from  the  bill  of  exceptions: 

"The  defendant,  on  the  trial  of  this  cause,  called  Robert 
IIcslop  as  a  witness  in  his  defense,  who  testified: 

"That,  iust  a  short  time  before  the  shootinjj:,  the  deceased 


'o' 


showed  him  a  pistol  which  he  (deceased)  then  liad  upon  his 
person.  Deceased  at  this  time  was  sitting  on  a  box  on  the 
opposite  sid(!  of  the  sti-eet  from  the  Salt  Lake  House,  and  in 
front  of  Reirirel's  store. 


WIGGINS  V.  PEOPLE. 


4m 


"  The  prosocntini^  attorney  admitted  that  this  was  after  tho 
deceased  was  ejected  from  defendant's  saloon. 

"  Whereupon  the  counsel  for  the  defendant  asked  witness 
the  following  question : 

"What,  if  any,  tlireats  did  the  deceased  make  against  tho 
dcfenchmt  at  this  time?  —  which  was  objected  to  by  tho  prose- 
cuting attorney,  for  the  reason  it  was  immaterial. 

"  Tho  objection  was  sustained  by  the  court,  and  the  defend- 
ant, by  his  counsel,  then  and  there  duly  excepted. 

"  Defendant's  counsel  then  asked  witness  what,  if  anything, 
did  deceased  then  say  concerning  the  defendant? 

"  (Objected  to  by  prosecuting  attorney  as  incompetent.) 

"Defendant's  counsel  thereupon  stated  that  they  expected 
to  prove  by  tliis  witness  that  in  that  conversation,  a  short  timo 
pi'ior  to  the  killing,  the  deceased,  in  the  liearing  of  said  wit- 
ness, made  the  threat  that  he  would  kill  the  defendant  before 
ho  went  to  bed  on  the  night  of  the  homicide,  which  threats  wo 
cannot  bring  home  to  the  knowledge  of  the  defendant. 

"AVhich  was  objected  to  by  the  counsel  for  tho  prosecution, 
because  it  was  incompetent. 

"  The  objection  was  sustained  by  the  court,  to  Avhich  the  de- 
fendant then  and  there  excepted. 

"  This  witness  and  several  others  testified  that  the  deceased's 
general  character  was  bad,  and  that  ho  was  a  dangerous,  vio- 
lent, vindictive  and  brutal  man." 

Althougli  there  is  some  conflict  of  authority  as  to  the  admis- 
sion of  threats  of  tho  deceased  against  the  prisoner  in  a  case 
of  liomicide,  where  the  threats  had  not  been  communicated  to 
him,  there  is  a  modification  of  the  doctrine  in  more  recent 
times,  estiiblished  by  the  decisions  of  courts  of  high  autliority, 
which  is  very  well  stated  by  AVharton,  in  his  work  on  Crimii^al 
Liiw,  §  1027.  "  Where  the  question  is  as  to  what  was  deceased's 
attitude  at  the  timo  of  the  fatal  encounter,  recent  threats  may 
become  relevant  to  show  that  this  attitude  was  one  hostile  to 
the  defendant,  oven  though  such  threats  were  not  communicated 
to  defendant.  Tho  evidence  is  not  relevant  to  show  the  quo 
arumo  of  the  defendant,  but  it  may  bo  relevant  to  show  that, 
at  the  time  of  the  meeting,  the  deceased  was  socking  defend- 
ant's life."  Sfoh's  V.  People  of  New  Yot'l\  53  N.  Y.,  \U\ 
Knmerv.  State,  \^  Ga.,   194;  Carn^Ml  v.  Peojde,  IG  HI.,  18; 


496 


^XMERICAN  CRIMINAL  REPORTS. 


JToller  V.  State,  ?>7  Ind.,  57;  People  v.  Arnold,  15  Cal.,  470; 
Peoph  V.  Scro(/f/! )!.><,  37  id.,  ♦!7r». 

Counsel  for  the  government,  conceding  tliis  principle  to  bo 
sound,  sustains  the  ruling  of  the  court  below,  on  the  ground 
that  t'  lere  is  no  evidence  in  the  case  to  show  any  hostile  move- 
ment or  altitude  of  the  deceased  towards  the  prisoner  at  the 
tii7'e  oi  /';  tal  shot,  and  that  there  is  conclusive  evidence  to 

the  coi.  .     i'n  support  of  this  latter  position,  he  relies  on 

the  testimony  of  Thomas  Dobson,  the  only  witness  of  the 
meetin  ;  •vhich  I'^^ulted  in  the  death  of  deceased  by  a  pistol 
shot  from  deJ .  ndau.. 

Before  criticising  jiobson's  testimony,  it  is  necessary  to  state 
some  preliminary  matters. 

It  appeal's  that,  on  the  night  of  the  homicide,  the  deceased 
and  a  num  of  similar  character,  called  Bill  ]}ean,  got  into  a 
quarrel,  in  a  drWdcing-saloon  ke])t  by  defendant,  in  which  they 
both  drew  pistols.  Defendant  interjMjsed  and  took  their  pistols 
from  them,  and  turned  them  out  of  his  saloon  by  different 
doors.  He  gave  liean  his  pistol  as  he  turned  him  out.  and 
asserts  that  he  also  returned  the  deceased ///.«<  pistol;  but  of  this 
there  is  doubt.  Shortly  after  this,  he  started  homewards,  and 
fell  in  com})any  with  Dobson,  who  was  a  night  watchman  of 
Salt  Lake  Citv.  As  thev  went  along  the  street.  Bean  was  dis- 
covered  in  the  n^cess  of  a  doorway  on  the  sidewalk  with  a 
pistol  in  his  liands,  and  defendant  went  up  to  liim,  took  it 
away  from  him,  and  he  ran  down  the  street.  Passing  on, 
Dobson  and  defendant  came  in  front  of  a  hotel,  the  Salt  Lake 
House,  where  the  homicide  occurred,  of  which  Dobson,  the  only 
Avitness,  tells  his  story  thus: 

"  As  I  came  down  street  about  2  o'clock  in  the  morning,  I 
saw  Dutch  John  sitting  on  the  carriage  steps  of  the  Salt  Lake 
House,  with  his  face  resting  on  his  hands,  apparently  in  a  stupor 
or  asleep.  Wiggins,  the  defendant,  was  with  me.  He  (Wig- 
gins) jumped  to  my  rear  and  immediately  the  tiring  com- 
menced. I  do  not  know,  and  cannot  tell,  who  fired  the  first 
shot.  At  the  first  report  I  turned  round  and  saw  the  blaz(^ 
of  the  second  shot  from  a  pistol  in  the  hands  of  Wiggins.  I 
had  advanced  to  the  cari'iage  steps  and  said,  '.Jack,  don't  kill 
him.'  Wiggins  then  jumped  on  the  carriage  stej)s  and  fired 
another  shot,  which  passed  right  by  in  front  of  me  and  went  into 


WIGGINS  t'.  PEOPLE. 


49T 


I. 


the  body  of  Dutch  John.  Dutch  John  grabbed  me  around  the 
legs,  and  we  fell  over  the  steps  into  the  street.  When  I  turned 
and  saw  the  lirst  shot  from  Wiggins'  pistol,  I  saw  Dutch  John's 
hands  raised  and  heard  him  cry  out,  '  Don't  kill  me,  I  am  not 
armed.'  Immediately  after  the  firing  ceased  Wiggins  stooped 
down  as  if  to  pick  up  something,  and  when  he  raised  up  ho 
had  something  in  his  left  hand,  but  I  cannot  tell  whether  it  was 
a  pistol  or  not.  At  the  same  time  Wiggins  made  the  remark 
to  the  deceased,  *  You  wanted  to  kill  me,'  or  '  You  tried  to  kill 
me,'  I  am  not  sure  which  expression  was  used." 

If  we  are  to  believe  implicitly  all  that  is  here  said  by  this 
witness,  we  do  not  see  in  it  conclusive  evidence  that  defendant 
fired  the  first  shot  and  that  no  previous  demonstration  was  made 
by  deceased.  On  the  conti'ary,  he  sii  ys  he  does  not  know,  and 
cannot  tell,  who  fired  the  fii'st  sliot.  lie  does  say  that  when 
the  vision  of  Dutch  John  mot  their  eyes  the  defendant  "jumped 
behind  witness  and  iuiviedlatehf  (tiiat  is,  just  after)  "the  firing 
commenced."  He  also  says  that,  immediately  after  the  firing 
ceased,  defendant  stooped  down  as  if  to  pick  up  something, 
and  arose  with  something  in  his  hand. 

We  do  not  think  that  this  statement  proves  at  all,  certainly 
not  conclnsiv^ely,  that  deceased  did  iwt  fire  the  first  shot. 
Either  there  must  have  been  some  reason  for  defendant's  jump- 
ing behind  witness,  and  he  must  have  picked  up  a  pistol  which 
fell  from  the  hands  of  deceased,  or  he  was  guilty  of  consum- 
mate acting  for  the  purpose  of  dec(?iving  witness,  and  making 
evidence  to  defend  himself  from  the  charge  of  murder  which 
he  intended  to  commit. 

It  is  difficult  to  believe  that,  on  a  sudden  encounter,  an}"^  one 
would  have  such  cool  deliberation ;  and  it  is  much  more  rea. 
sonable  to  believe  that  the  seeking  of  safety  by  jumping  behind 
the  witness  was  caused  by  some  movement  or  other  evidence 
of  hostile  intent  by  deceased  which  escaped  the  less  vigilant 
eye  of  witness,  and  that  it  was  the  display  of  tli^  pistol  Avhich 
the  defendant  afterwards  picked  up.  This  latter  vicAV  is  sup- 
ported by  other  testimony,  to  be  presently  noticed.  But  it  is 
pertinent  here  to  remark  that  both  the  effect  of  this  witness' 
testimony  and  his  credibility  were  to  be  weighed  by  the  jury, 
and  that  doubt  was  thrown  on  the  latter  by  showing  that,  in 
the  preliminary  examination,  he  had  made  statements  at  vari- 
VoL.  IV -88 


498 


AMERICAN  CRIMINAL  REPORTS. 


ance  with  what  ho  now  stated,  which  were  more  favorahlo  to 
defendant. 

Take  all  those  to^^ether,  and  we  think  the  court  had  no  ri^^iit. 
to  assume  that  it  was  beyond  doubt  tliat  defeiKhint  had  coin- 
inenced  the  assault  which  resulted  in  d<^ath,  by  lirini;-  tlie  lirst 
shot,  without  any  cause,  real  or  api)arent.  In  this  we  are  con- 
Hrmod  by  other  parts  ol'  the  testimony  displayed  in  the  bill  of 
cxcei)tio?i;-;. 

It  is  nowhere  asserted  that  defendant  fired  more  than  three? 
shots.  A  witness,  however,  who  was  within  lunirinfi^,  swears 
positively  that  he  heard  four  shots.  In  agreeuKMit  with  this,  it 
is  proved,  without  contradiction,  that  when  dei'endaut  was 
arrested,  immediately  after  the  shooting-,  tlireo  pistols  were 
found  on  hiui.  Of  one  of  these,  three  l)arrels  were  em])ty;  of 
anothei",  one;  and  the  third  was  fidly  loaded.  The  police 
officer  who  arrested  defendant  says  of  these  pistols:  "Tlic 
one  identilied  as  Dutch  -lohn's  had  one  chamber  empty;  the 
one  identilied  as  IJean's  had  tlirce  chamlKMN  empty;  and 
the  deri'in^^erwas  loaded,''  It  is  a  fair  infer(Mu;e  that  the  three 
empty  barrels  were  those  lie  liad  dischar,<j^ed  at  deceased,  and 
that  tlie  other  was  the  one  he  liad  picked  up  after  the  shooting. 
which  had  been  in  the  hands  of  deceased. 

AVhence  comes  tlr^  fourth  shot,  and  who  emptied  the  cham- 
ber of  dexjeased's  pistol  {  That  deceased  luid  a  pi;>tol  with  him 
is  a  concession  uv.uh'  by  the  jn'osccitin;^"  attorney  on  the  trial. 
It  will  1)0  seiMi,  in  the  extract  fr<»m  the  bill  of  exceptions  fii-st 
given,  that  the  witness  Ileslop  testilies  positively,  that,  just  a 
shoi't  time  before  the  shootin<»',  the  deceased  showed  him  a  pis 
tol,  which  he  tluni  had  on  his  person,  while  sittin<:;on  a  l)ox  on 
the  side  of  the  street  opposite  the  sceiUM)f  (he  homicide;  and 
the  prosecution  admitted  that  this  was  after  the  deceast^d  had, 
been  ojtx.'ted  from  the  sidoon.  Here,  then,  was  a  inan  who  had 
a  few  hours  or  minutes  l)ef(»re,  had  adilliculty.  in  which  [)istols 
were  drawn;  who  was  known  to  Ik?  (*f  desperate  and  vin<lictiv(? 
character;  who  had  shown  a  witness  ii  plsti>l  within  a  few  min 
utes  precculing-  the  fatal  encounter,  and  that  j»istol  was,  after 
the  encounter,  picked  up  (m  the  sidewalk,  where  it  oc(!urre(U 
with  a  chamber  em]>ty.  Also,  stronf]^  evith^nce  to  show  that 
one  more  shot  was  fired  than  defendant  had  fired.  i»nd  the 
probability  that  it  came  from  the  pistol  of  deceased  at  tluit  time. 


WIGGINS  c.  PEOPLE. 


490 


!Now,  when,  under  all  these  circumstances,  the  witness,  and 
the  only  witness  who  was  present  at  the  encounter,  swears  tliat 
he  cannot  tell  where  the  first  shot  came  from,  though  he  knows 
that  defendant  only  fired  three,  it  must  be  very  apparent  that 
if  the  person  to  whom  tjie  deceased exliiliited  that  pistol  a  few 
minutes  before  the  shootin*^  liad  been  permitted  to  tell  the 
jury  that  deceased  tlien  said  "  he  would  Icill  defendant  before 
lie  went  to  bed  that  night,"  it  would  have  tended  strongly  to 
show  where  that  liret  shot  came  from,  and  how  that  pistol,  with 
one  chamber  emptied,  came  to  be  found  on  the  ground.  This 
testinu)ny  might,  in  the  state  of  mind  ju-oduced  on  the  jury  by 
the  other  evidence  we  have  considered,  have  turned  the  scale 
in  favor  of  detendant.  At  all  events,  we  are  of  opinion  that  in 
that  condition  of  things  it  was  relevant  to  the  issue,  and  should 
have  been  admitted. 

Judgment  reversed,  with  directions  to  set  aside  the  verdict, 
and  grant  a  new  trial. 


Mr.  .lustice  CMKroun,  dissenting. 

Murder  is  the  charge  preferred  against  the  prisoner,  Avhich, 
at  common  law,  is  defined  to  be,  when  a  person  of  sound  mem- 
ory and  discretion  unlawfully  killoth  any  I'easonable  creature 
in  being,  and  in  the  peace  of  the  state,  with  malice  aforethought, 
either  express  or  im])lied.  Modern  statutes  defining  murder  in 
many  cases  allix  degrees  to  the  offense,  according  to  the  nature 
and  aggravation  of  the  circmnstances  under  which  the  act  of 
liouiicide  is  committed. 

Oll'enses  against  the  lives  and  persons  of  individuals  arc  de- 
fined l)y  the  statutes  of  Utah  as  follows:  Whoever  kills  any 
human  being,  with  malice  aforethought,  the  statute  of  the  ter- 
ritory enacts,  is  guilty  of  nnu'der;  and  the  succeeding  section 
of  the  same  act  ]irovides  that  all  mui'der  per])etrated  1\7  ])oison, 
or  by  lying  in  wait,  or  by  any  other  kind  of  wilful,  deliljerate 
and  premeditated  killing,  or  which  is  committed  in  the  perpe- 
tration, or  attempt  to  perpetrate,  any  one  of  the  offenses 
therein  enumerated,  is  murder  of  the  first  degree,  and  shall  be 
punished  with  death.     Laws  Utah,  51,  c.  21,  tit.  2,  sees.  4,  5. 

Pursuant  to  that  enactnu;nt,  th(^  grand  jury  of  the  third 
judicial  district,  in  due  form  of  law,  preferred  an  indictment 
against  the  prisoner  for  the  murder  of  John  Kramer,  charging 


500 


AMERICAN  CRIMINAL  REPORTS. 


that  he,  the  jn'isonor,  did,  at  the  time  and  in  the  manner  nnd 
by  the  means  therein  described,  feloniously,  wilfully,  dnlil)or- 
ately,  prcmeditatedly,  and  with  malice  aforethought,  kill  and 
murder  the  deceased,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and  dig- 
nity of  the  people  of  the  United  States  resident  in  the  said 
territory. 

Sufficient  appears  to  show  that  the  prisoner  was  arraigiu^d 
in  due  form  of  law,  and  that  he  pleaded  to  the  indictment  that 
he  was  not  guilty,  as  requu'ed  by  the  statute  of  the  teri'itory; 
that,  material  witnesses  for  the  prisoner  being  absent,  the  in- 
dictment was,  on  his  motion,  continued  to  the  next  term  of  tlio 
court.  Both  parties  being  ready  at  the  succeeding  term  of  the 
court,  the  jury  was  duly  imi)aneled,  and  sworn  well  and  truly 
to  try  the  issue,  as  provided  by  law.  Witnesses  wore  called 
and  examined  by  the  prosecution  and  for  the  defense,  and  the 
cause  was  regularly  committed  to  the  jury  having  the  prisoner 
in  charge. 

None  of  these  proceedings  are  called  in  question;  and  it  ap- 
pears that  the  jury  retired,  and,  having  duly  considered  tlu> 
case,  returned  into  court,  and  gave  their  verdict  that  the 
prisoner  is  guilty  of  murder  in  the  lirst  degree.  Sentence  in 
due  form  of  law  was  rendered  by  the  court,  as  more  fully 
appears  in  the  record;  and  the  prisoner  excepted  to  the  rulings 
and  instructions  of  the  court,  and  appealed  to  the  supreme 
court  of  the  territory,  as  he  had  by  law  a  right  to  do,  where 
the  judgment  of  the  subordinate  court  was  affirmed.  Laws 
Utah,  6<{,  c.  31,  see.  5. 

Error  lies  from  that  court  to  the  supreme  court  in  criminal 
cases,  where  the  accused  has  been  sentenced  to  capital  punish- 
ment; and  the  record  shows  that  the  prisoner  sued  out  a  writ 
of  error,  and  removed  the  cause  into  this  court.     18  Stat.,  2.'>4. 

Four  errors  are  assigned  in  the  transcript:  1.  That  the  couit, 
orred  in  affirming  the  judgment  of  the  district  court.  2.  That 
the  court  erred  in  holding  that  the  affidavit  offered  to  jH-oeure 
a  continuance  Avas  insufficient.  3.  That  the  court  erred  in  sus- 
taining the  ruling  of  the  district  court,  that  the  uncommuni- 
cated  threats  of  the  deceased,  made  in  connection  with  the 
exhibition  of  a  pistol  a  short  time  before  the  homicide,  were  in- 
admissible in  evidence  to  the  jury.     4.  That  the  court  erred  in 


WIGGINS  V.  PEOPLE. 


501 


overruling  the  exceptions  of  the  prisoner  to  the  instructions 
given  to  the  jury  by  the  district  court.  • 

Two  of  the  errors  assigned  —  to  wit,  the  second  and  fourth  — 
liaving  been  a})andoncd  licro  in  the  argument  for  the  prisoner, 
the  re-exaniination  of  the  case  will  be  confined  to  the  third  as- 
signed error,  as  the  only  remaining  one  which  deserves  any 
special  consideration. 

Exi)ert  testimony,  not  in  any  Avay  contradicted,  was  intro- 
(hiced  by  the  prosecnitor,  to  the  effect  that  the  witness  saw  the 
deceased  immediately  after  he  came  to  his  death,  and  he  testi- 
fied that  he  made  a. poHt-movtem,  examination  of  the  body  the 
next  day;  that  the  deceased  received  two  pistol  wounds;  that 
one  shot  struck  him  in  the  side,  a  little  back  of  a  middle  lino 
from  the  hollow  of  the  arm  down  and  just  at  the  border  of  the 
ribs;  and  the  witness  stated  that  he  examined  that  wound,  but 
that  hp  did  not  trace  the  ball,  as  the  other  wound  was  the  one 
tliat  proved  fatal;  that  the  other  shot  struck  him  in  the  chin, 
and  that,  ranging  downward,  it  cut  the  external  jugular  vein, 
tlic  ball  burying  itself  in  the  muscles  of  the  shoulder,  and  that 
the  deceased  bled  to  death  from  that  wound;  and  the  witness 
added,  to  the  effect  that  from  the  course  the  ball  took,  and  the 
wounds  it  made  in  its  course,  the  deceased  must  have  been 
sitting  at  the  time  with  his  head  bowed  down  and  resting  on 
his  breast. 

Deatii  ensued  immediately,  and  the  record  discloses  what  im- 
mediately preceded  the  homicide  and  what  occurred  at  the 
time  it  was  committed.  Beyond  doubt,  the  homicide  occurred 
al)out  2  o'clock  in  the  morning;  and  it  is  equally  certain  that 
it  was  effected  by  the  described  shots  from  a  pistol.  Prior  to 
that  time, —  say  about  1  o'clock  or  a  little  Liter, —  the  deceased, 
with  six  or  seven  other  persons,  was  in  the  saloon  of  the  pris- 
oner, and  it  api)ears  tljat  the  tleceased  and  two  of  the  others 
lijid  a  difficulty,  and  that  one  of  tlieui  was  struck  over  the 
liead  in  tlie  affray,  llevolvers  were  drawn  •  by  the  deceased 
and  one  Bean,  when  the  prisoner  interfered  and  took  the 
pistols  from  both  of  them,  and  in  the  scuffle  struck  the  deceased 
over  the  head.  lie  then  put  Bean  out  of  the  back  door,  gave 
him  his  pistol,  and  told  him  to  go  home;  and  he  put  the  de- 
ceased out  of  the  front  door,  and  told  him  to  go  home.  Half 
an  hour  or  more  later  the  prisoner  came  dow  n  the  street  with 
one  of  the  witnesses  for  the  prosecution,  and  when  they 


SOS 


AMERICAN  CRIMINAL  REl'ORTS. 


-:S*5-'!fr§| 


arrived  in  front  of  the  Salt  Lake  llouso  tlio  witness  states  that 
lio  saw  deceased  sittinj^-  on  tliu  earria^^esleps of  the  liotel,  witli 
his  face  i-esting  on  his  hands,  appaiuMilIv  in  a  stupor  or  itslecp; 
that  the  prisoner  jinn[)ed  to  tlie  rear  of  tlie  witness,  and  that 
the  lirin^t^  immediately  connneneed;  tliat  tlie  witnes.i  did  iiui 
k)U)w,  an<l  cannot  tell,  wlio  Hred  the  lirst  sliot;  thatat  the  lirsl 
report  lie,  tlie  Avitness,  turned  round  imd  saw  tlic  blaze  of  the 
second  shot  from  a  pistol  in  the  hands  of  the  ])ris()iier.  AVit- 
ncss  advanced  to  the  carria<^c-steps,  and  lie  testilles  that  he  said 
to  the  ))risoner,  ''Jack,  don't  kill  him,"  to  which  it  seems  no  re- 
sponse was  ^iven.  Instead  of  that,  the  prisoiu^r  then  jumped  to 
the  carria<,''e-steps  and  fired  nnother  shot,  wliieh,as  the  witness 
states,  [)assed  right  in  fi'ont  of  liiin  into  the  body  of  the  de- 
ceased. Something  may  b(>  infeiTed  as  to  its  clfect  from  the 
fact  that  the  <leceiised  I'aised  his  hands,  as  the  witness  states, 
and  that  he  heard  him  say,  "Don't  kill  me,  J  am  not  armed." 
Immediately  after  the  tiring  ceased  the  prisoner  sIoojumI  down 
as  if  to  ])ick  up  something,  and  when  ho  rose  np  the  witness 
lioticed  that  he  had  something  in  his  left  hand,  but  the  witness 
is  not  able  to  si:ite  what  it  was. 

Thre(!  witnes.;es  testify  that  there  were  three  shots  fired  in 
rapid  siieeessi(m  in  front  oF  the  hotel,  and  one  of  them  st;ites 
that  he  heard  a  fourlh  shot  failher  down  the  street.  Two  of 
the  witnesses  concur  that  the  lii-st  shot  ranged  from  east  to 
west,  and  that  the  range  of  the  other  two  boro  a  little  to  the 
noi'tli  of  west. 

Several  witnesses  were  examined  for  the  defense,  and  one  of 
them  testified  that  the  decoiised,  when  he  was  put  out  of  the 
saloon  and  told  to  go  home,  said  he  would  go  if  the  prisoner 
would  give  him  his  gun,  and  that  the  i)risoner  pushed  him  out 
of  the  door  and  handed  him  his  pistol,  and  that  the  deceased 
remarked:  "I  will  make  it  hot  for  yon."  Testimony  was  also 
given  by  another  witness  called  for  the  defense,  to  the  effect 
that  the  deceased,  aftei'  he  was  ejected  from  the  saloon,  showed 
the  witness  a  pistol  wh(>n  he  was  sitting  in  front  of  a  store 
op])osite  the  Salt  Lake  House. 

TvtO  <]ucstions  were  asked  the  witness,  as  follows:  1.  What, 
if  any,  threats  did  the  deceased  make  against  the  prisoner? 
2.  What,  if  anything,  did  the  deceased  say  concerning  the 
prisoner  ? 

Objection  was  made  to  each  question,  and  both  were  excluded 


1 


WIGGINS  V.  PEOPLE.  WMk 

by  the  court,  and  the  prisonor  excepted  to  tlio  respective  rul- 
iii<^'S,  lliul  the  quest i(jns  bccu  aduiitted,  the  prisoner  expected 
to  ])rov(!  tluit  tlie  deceiised  made  the  threat  that  lie  wouhl  kill 
the  piist)ti(!r  hi'l'ore  he  went  to  bed  that  night;  but  the  defense 
admitted  that  the  evidence  would  not  show  that  the  pi'isoner 
had  l:.iowled,i>e  of  the  threat  at  the  time  of  the  kiliiui,'.  Due 
exception  was  taken  to  the  ruliui^,  which  is  the  basis  of  the 
assignment  of  error  not  waived  by  the  [n-isonei'.  Evidence  was 
also  inlroduced  by  the  defense  that  the  general  character  of 
the  deceased  was  bad,  and  that  he  was  a  (hmgerous,  violent  and 
brutal  man. 

Subscxjuent  to  tlie  jifTray  in  the  saloon,  and  before  the  homi- 
cide, the  deceased  had  a  conversation  with  another  witness 
called  and  examined  by  the  prosecution.  lie  said  that  the 
prisoner  ha<l  taken  his  pistol  from  him  and  beat  him  over  the 
head  with  it,  and  it  appears  that  he  showed  the  witness 
the  wounds  in  his  head.  About  an  lionr  or  kss  after  that  inter- 
vi(!W  they  met  again,  in  front  of  the  hotel,  and  walked  up  the 
street  together,  and  in  the  course  of  the  conversation  Avitli  de- 
ceased, witness  asked  him  if  lie  was  armed,  and  the  deceased 
gav(!  the  witness  very  positive  assurance  that  he  was  not ;  that  he 
had  no  weapon  about  him  except  a  ]H)cket-knife,  which  ho 
showed  to  the  witness.  Pi-esently  the  deceased  left  and  went 
down  th(!  street,  and  the  witness,  in  about  a  minute,  started  in 
the  same  direction,  and  as  he  passed  the  saloon  where  the  affray 
occurred,  the  prisoner  came  out  and  commenced  conversing 
with  the  witness.  Among  other  things,  he  said  that  the  de- 
ceased and  IJean  had  a  dilHculty  in  his  saloon,  and  that  he 
took  their  pistols  away  from  them  and  beat  them  over  the 
head  with  the  pistols;  that  he  put  one  of  them  out  of  the  back 
(h)or,  and  the  other  out  of  the  front  door;  that  he  gave  Bean 
back  his  ])istol,  and  told  him  that  they  could  not  have  any 
trouble  in  the  saloon;  that  if  there  Avas  to  be  any  killing  there, 
he  was  going  to  do  it  himself.  At  that  stage  of  the  conversa- 
tion the  witness  asked  him  what  he  did  with  the  pistol  of  the 
deceased,  and  the  witness  states  that  the  prisoner  pulled  back 
the  lapel  of  his  coat,  and  said:  '*  I  have  it  here."  Immaterial 
matters  are  omitted.  Suilice  it  to  say,  the  prisoner  proceeded 
down  the  street,  and  the  witness  soon  followed;  and  when  the 
latter  got  around  Godbe's  corner,  he  heard  u  shot  fired,  then 


504 


AMERICAN  CRIMINAL  REPORTS. 


he  turned  and  ran  towards  the  hotel,  and  when  he  turned  the 
corner  he  saw  tlie  flash  and  hoard  the  report  of  two  other 
shots,  and  when  he  got  in  front  of  Hale's  saloon  ho  heard  an- 
other shot  farther  down  the  street. 

Four  shots  were  heard ;  and  the  witness,  who  was  a  ])oUoo 
officer,  states  that  when  he  came  in  front  of  the  hotel  ho  was  re- 
quested to  arrest  tlie  j)risoner,  and  that  he  ran  towards  the  cor- 
ner whore  the  prisoner  was  crossing  and  called  to  him  to  stop, 
and  that  he  came  back,  and  that  thoy  started  up  the  street,  when 
the  following  conversation  ensued :  I  said,  "  Jack,  I  guess  you 
have  killed  Dutch  John."  Ho  said,  "If  I  haven't,  I  will." 
When  they  got  in  front  of  the  hotel,  I  asked  him  for  his 
pistol.  lie  handed  mo  one,  saying:  "That  is  IJill  Ijoan's;" 
and  another,  "That  is  Dutch  John's;"  and  a  third  one,  a  sin- 
gle-barreled derringer,  and  said:  "This  is  mine."  One  cham- 
ber was  empty  in  the  pistol  idontitiod  as  Dutch  John's,  and 
three  chambers  wore  empty  in  the  one  identiliod  as  Uoan's,  and 
the  derringer  was  loaded. 

Questions  of  the  kind  involved  in  the  single  assignment  of 
error  to  be  re-examined  cannot  bo  uitdorstandMigly  determined 
without  a  chiiir  view  t)f  what  the  state  of  the  case  was  at  tho 
time  the  ruling  was  made;  and  inasmuch  as  it  is  the  judgment 
of  the  suiH'ome  court  of  the  territory  to  which  the  writ  of 
error  is  addressed,  it  seems  to  bo  just  and  right  that  the  reasons 
which  tliat  court  assigned  for  alllrming  the  judgment  of  tho 
subordinate  court  should  receive  due  consideration. 

Enimgh  appears  to  sliow  that  tho  })risonor  insisted  that  the 
evidence  of  uncommunicatod  threats  should  have  boon  ad- 
mitted, because  there  is  a  conflict  in  tho  testimony  as  to  who 
iired  the  first  shot,  and  that  the  evidence  of  tho  throats,  if  it 
had  been  admitted,  would  have  aided  the  jury  in  determining 
that  question.  Influenced  by  that  suggesti<m,  the  first  stop  of 
the  court,  apparently,  was  to  examine  the  evi(UMice  roi)orted  in 
tho  transcript;  ami,  having  come  to  tho  conclusion  that  there 
is  no  conflict  in  the  evidence  as  to  Avho  lirod  tho  fii-st  shot, 
th3y  decided  that  the  ruling  of  the  district  court  excepted  to, 
in  excluding  the  two  (piestions  as  to  tho  throats,  is  correct. 

Introductory  to  tha  conclusion,  they  lind  the  facts  to  be, 
that  the  deceased  was  sitting  upon  a  carriage-step  in  front  of 
the  hotel,  with  his  hands  up  to  his  face  and  his  head  bowe<l 


Iffil 


WIGGINS  V.  PEOPLE. 


506 


down,  apparently  in  a  stupor  or  asleep,  as  the  prisoner  and  the 
night-watch  came  near,  and  that  the  prisoner,  as  they  were 
passing,  jumped  behind  the  witness,  and  that  the  firing  imme- 
diately commenced,  the  testimony  of  two  witnesses  being  that 
the  firing  was  from  east  to  west,  and  that  the  prisoner  was 
east  of  the  deceased.  Obviously,  they  regarded  the  statement 
of  the  witness,  that  he  did  not  know  who  fired  the  first  shot, 
as  merely  negative  testimony ;  for  they  proceed  to  state  that 
the  positive  testimony  of  tlie  two  witnesses,  that  the  firing 
was  from  east  to  west,  showed  that  it  was  impossible  that  the 
deceased  should  have  fired  the  first  shot. 

In  the  next  place  they  advert  to  the  statement  that  the 
[)risoncr  stooped  down,  jut-t  after  the  shooting,  as  if  to  pick  up 
something,  and  to  the  testimony  of  one  of  his  Avitnesses,  that 
lie  exhibited  a  pistol  shortly  before  his  death,  and  they  remark 
that  tlie  testimony,  if  no  other  facts  were  found,  might  tend  to 
])rove  that  the  deceased  had  a  ])ist()l  in  his  possession,  but  that 
it  would  not  be  sufficient  to  raise  a  doubt  as  to  who  fired  the 
first  shot. 

Kven  conceding  the  truth  of  the  testimony,  they  still  were  of 
the  ojtinion  that  the  pi'isonor  was  the  aggressor;  but  they  pro- 
ceeded to  say  that  they  did  not  think  that  the  deceased  even 
had  a  pistol,  and  gave  their  i-easons  for  their  conclusion  as 
follows:  "His  i)istol  was  in  the  hands  of  the  prisoner  just  be- 
fore and  just  after  tlu^  killing,  and  if  the  deceased  had  a  pis- 
tol, as  one  witness  testifies,  shortly  before  his  death,  it  is 
evident  that  he  did  not  have  it  when  he  was  killed,  for  after 
the  first  shot  he  threw  uj)  his  arms  and  said,  '  Do  not  kill  me, 
I  am  unarmed,'  a  thing  which  it  is  not  reasonable  to  suppose 
ho  would  have  said  if  he  had  just  fired  the  iirst  shot;  and,  be- 
sides, no  such  i)istol  was  found  on  his  person  or  near  him  after 
the  killing."  "If  the  prisoner  had  picked  up  an  additional 
pistol  it  would  certainly  luive  been  found  upon  him,  but  such 
was  not  the  fact ;"  and  they  add,  that  "  this  second  pistol,  if 
any  existed,  could  not  have  been  in  the  possession  of  the  de- 
(ioased  when  he  was  kilhid." 

Suppose  the  facts  to  ho,  as  found  by  the  supreme  court  of  the 
territory,  then  it  follows  that  tliere  was  no  evidence  in  the 
case  tending  to  show  that  the  deceased  was  the  aggressor,  or 
that  tlie  act  of  homicide  was  periietrated  in  self-defense,  within 


506 


AMERICAN  CRIMINAL  REPORTS. 


the  principles  of  the  criminal  law  as  understood  and  adminis- 
tered in  any  jurisdiction  where  our  language  is  .s{)()ken. 

Homicide,  api)arently  unnecessary  or  Avilful,  is  presumed  to 
be  malicious,  and,  of  course,  amounts  to  murder,  unless  the 
contrary  appears  from  circumstances  of  alleviation,  excuse  or 
justilication,  and  it  is  incumbent  upon  the  prisoner  to  nudce  out 
such  circumstances  to  the  satisfaction  of  the  jury,  unless  tliey 
arise  from  the  evidence  produced  against  him  by  the  prosecu- 
tion. Fost.  Or.  L.,  255;  1  East,  P.  C,  22i;  4  Bl.  Com.,  201; 
1  Russ.  C.  6c  M.  (4th  ed.),  483. 

Cases  arise,  as  all  agree,  where  a  person  assailed  may,  witli- 
out  retreating,  o))pose  force  to  force,  even  to  the  death  of  the 
assailant;  and  otlier  cases  arise  in  which  the  accused  cantujt 
avail  himself  of  tlie  plea  of  self-defense,  without  showing  tliat 
he  retreated  as  far  as  he  could  with  safety,  and  tlien  killed  the 
assailant  only  lor  the  preservation  of  his  own  life.  Fost.  Cr. 
L.,  275;  1  E;!st,  T.  C,  27T;  4  HI  Com.,  184. 

Courts  and  text-writers  have  not  alwavs  stated  the  rules  of 
decision  ap|)Iical)le  in  defenses  of  the  kind  in  the  same  forms 
of  expression.  None  more  favorable  to  the  accused  have  been 
promulgated  ;',!iy  where  than  thos(i  which  were  adopted  seventy 
years  ago,  in  the  trial  of  Selfridge  for  manslaughter.  Pamph. 
Rep.,  100. 

Three  propositions  were  laid  down  in  that  case: 

1.  That  a  man  who,  in  the  lawful  pursuit  of  his  business,  is 
attacked  by  aiu)ther,  under  circumstances  which  denote  an 
intention  to  take  away  his  life  or  do  him  some  enormous  bodily 
harm,  may  lawfully  kill  the  assailant,  provided  In;  use  all  the 
means  in  his  power  otherwise  to  save  his  own  life  or  prevent 
the  intended  harm,  such  as  retreating  as  far  as  he  can,  oi*  dis- 
abling his  adversary  w'ithout  killing  him.  if  it  be  in  his  |iower. 
2.  That  when  the  attack  u|)on  him  is  so  sudden,  fierce;  and 
violent,  that  a  reti'eat  would  not  diminish  but  increase  his 
danger,  he  nuvy  instantly  kill  his  adversary  without  retreating 
at  all.  ;>.  That  when,  froni  the  nature  of  tlu;  attack,  there;  is 
reasonable  ground  to  believe  that  there  is  a  design  to  destroy 
his  life  or  to  commit  any  felony  u|)on  his  jierson,  the  killing 
the  assailant  will  be  excusabU;  homicide,  although  it  should 
afterwards  appear  that  no  felony  was  intended. 

Learned  jurists  excepted  at  the  time  to  the  third  j)roposition, 


WIGGINS  V.  PEOPLE. 


507 


as  too  favorable  to  the  accused ;  but  it  is  safe  to  affirm  that 
the  legal  profession  liave  come  to  the  conclusion  that  it  is  sound 
law,  in  a  case  wliere  it  is  applicable.  Support  to  that  proposi- 
tion is  found  in  numerous  cases  of  hlgli  authority,  to  a  few  of 
wliich  reference  will  be  nuide. 

AVhen  one  without  fault  is  attacked  by  another,  under  such 
circumstances  as  to  furnish  reasonable  ground  for  a])prehend- 
ing  a  design  to  take  away  his  life  or  do  him  some  groat  bodily 
liarui,  and  there  is  reasonable  gr<jUiid  for  believing  the  danger 
invminent  that  such  design  will  be  accom])lished,  the  assailed 
may  safely  act  upon  the  appearances  and  kill  the  assailant,  if 
that  be  necessary  to  avoid  the  apprehended  danger;  and  the 
killing  will  Ix;  justified  although  it  may  afterwards  turn  out 
that  the  a])])earaiices  were  false,  and  that  there  was  not  in  fact 
either  design  to  do  him  serious  injury,  or  danger  that  it  would 
1)0  dcme.  S/ioiic/'  V.  Pcoj>h\  2  Comst.,  197;  Peojjh' v.  McLeod, 
1  Hill,  420;  1  Hawk.  P.  C,  ch.  !»,  sec.  1,  p.  TO. 

Two  other  eases  decided  in  the  same  state  have  adopted 
the  same  rule  of  docision,  and  it  appears  to  bo  well  founded  in 
roiison  and  justice.  P(ittri<f<(ni  v.  /\'(>j/?e,4:C}  Barb.,  OSa ;  People 
IK  SiiUivKn,  ;3  Sold.,  400;  Shite  v.  S/onn,  47  Mo.,  ('.12;  Wliart.  on 
Homicide,  212;  Sf((f<'  v.  Ihdyr,!  Jones  (N.  C),  272;  Com.  v. 
Dnint,  58  Penn.  St.,  J». 

Unless  the  party  has  reasonable  ground  of  apprehension  at 
the  time,  thy  justilicaticm  will  fail;  it  being  settled  law  that  a 
hare  fear,  r.naccomi>anied  by  any  overt  act  indicative  of  the 
sui)[)osed  intention,  will  not  warrant  the  i)arty  entertaining 
such  fears  in  killing  the  other  party  by  way  of  precaution,  if 
tluu-e  be  no  actual  danger  at  the  time.  1  East,  I*.  C,  272; 
Ros.  (Jrim.  Ev.  (7th  Am.  ed.),  TOS;  State  v.  Scott,  4  Ired.,  401); 
Sf^fe.  V.  //a./'r/'.s,  4  Jones,  H»0;  Dill  v.  State,  25  Ala.,  15;  Dyson. 
V.  State,  20  Miss.,  302;  l/olme.><  r.  State,  23  Ala.,  24;  Carroll  v. 
State,  23  id.,  33. 

Two  gi'ounds  are  assumed  in  support  of  the  proposition  that 
the  evidence  of  previous  threats  ought  to  have  been  admitted: 
1.  That  itwouUl  have  conlii-med  the  other  evidence  introduced 
by  th(!  ju-isoner  to  prove  that  he  committed  the  act  of  homi- 
(Mde  in  self-defense.  2.  That  it  would  have  aided  the  jury  in 
determining  which  of  the  parties  lired  the  lirst  shot. 

Kenuirks  already  made  are  sulficieiit  to  show  that  a  bare 


608 


AMERICAN  CRIMINAL  REPORTS. 


m 


fear  of  danger  to  life,  unaccompanied  by  any  overt  act  or 
manifestation  indicative  of  a  felonious  intent  to  tluit  effect,  will 
not  justify  the  person  entertaining  such  fears  in  killing  the 
supposed  assailant.  Such  a  defense  is  not  made  out,  unless  all 
the  conditions  of  the  proposition  before  explained  concur  in 
the  immediate  circumstances  which  attend  the  act  of  homicide. 

When  a  person  apprehends  that  another,  manifesting  by  his 
attitude  a  hostile  intention,  is  about  to  take  his  life,  or  to  do 
him  enormous  bodily  harm,  and  there  is  reasonable  ground  for 
believing  the  danger  imminent  that  such  design  will  be  ac- 
complished, he  may,  if  no  other  practicable  means  of  escape  are 
at  hand,  oppose  force  by  force,  and  may  even  kill  the  assail- 
ant, if  that  be  necessarj'^  to  avoid  the  apj)rehended  danger;  but 
he  must  act  and  decide  as  to  the  necessity  and  the  force  of 
the  circumstances  at  liis  peril,  and  with  the  understanding  that 
his  conduct  is  subject  to  judicial  investigation  and  review. 

Apply  that  rule  to  the  case  before  the  court,  and  it  is  clear 
that  there  was  no  evidence  in  the  case  tending  to  show  that 
the  prisoner  killed  the  deceased  in  self-defense.  Proof  to  that 
effect  is  entirely  wanting,  and  every  attending  circumstance 
disproves  the  theory,  and  shows  that  such  a  defense,  if  it  was 
set  up  in  the  court  below,  was  utterly  destitute  of  every  pre- 
tense of  foundation,  as  appears  from  the  following  circum- 
stances: 1.  That  the  prisoner  was  not  alone.  2.  That  when 
he,  in  com|)any  with  the  night-watchman,  approached  the  hotel, 
the  deceased  was  sitting  on  the  steps  asleej)  or  in  a  stupe )i',  ap- 
parently unaware  of  their  approach.  t5.  That  the  prisoner 
might  have  pass(;d  on,  turned  back,  or  stood  still,  in  iJerlVct 
safety.  4.  That  if  he  feared  anything  his  needful  protection 
was  at  hand.  5.  That  the  deceased  neither  si)ok(!  nor  moved,  and 
was  as  harmless  as  if  he  had  been  inanimate  matter.  <J.  That 
the  prisoner,  better  than  anyone  else,  except  the  sleeping  man, 
knew  that  the  deceased  was  unarmed,  because  lie,  the  prisoner, 
had  the  pistol  of  the  deceased  in  his  own  pocket.  1  Gabb.  (/r. 
L.'  490. 

Viewed  in  the  light  of  the  attending  circumstances,  it  is 
anuizing  that  any  one  can  come  to  the  conclusion  that  there  is 
any  evidence  tending  to  show  that  the  prisoner,  as  a  reasonable 
being,  could  have  believed  that  it  was  necessary  to  take  Die 
life  of  the  deceased  in  order  to  save  his  own  life,  or  to  sa\ c 


WIGGINS  V.  PEOPLE. 


509 


himself  from  enormous  bodily  harm.    Zor/m  v.  Com.,  38  Ponn. 
St.,  205. 

Stronger  evidence  of  express  malice  is  seldom  or  never  exhib- 
ited, as  appears  from  the  fact  that  he  continued  to  lire  after 
the  wounded  man  threw  up  his  hands  and  cried  out:  "  Don't 
kill  me,  I  am  unarmed,"  and  also  from  tlie  fact  that  when  tlie 
police  officer  remarked  to  him,  "  Jack,  I  guess  you  have  killed 
Dutch  John,"  he  said,  "If  I  haven't,  I  will." 

Testimony  merely  confirmatory  of  a  proposition  wholly  un- 
supported by  other  evidence  is  not  aduiissible  as  substantive 
evidence.  Grant  that,  and  still  it  is  insisted  by  the  prisoner 
that  the  evidence  of  previous  threats  made  by  the  deceased 
shoiild  have  been  admitted  to  confirm  the  evidence  introduced 
by  the  prisoiier,  to  prove  tiiat  the  deceased  fired  the  first  shot. 

IMere  theories  are  not  entitled  to  consideration,  unless  they 
find  some  support  in  the  evid(Mi(!e.  There  is  no  evidence  in  the 
case  tending  to  show  that  the  deceased  fired  the  first  shot,  or 
that  he  fired  at  all,  or  that  he  manifested  any  intention  to  offer 
any  violence  whatever  to  the  prisoner. 

Two  witnesses  testify  that  the  prisoner,  when  he  jumped 
behind  the  night-watchman,  was  east  of  the  deceased,  and  that 
the  range  of  the  firing  was  from  tlio  east  to  the  west,  fully  jus- 
tifying the  conclusion  of  the  court  below  that  it  is  impossible 
that  the  deceased  should  have  fired  the  first  shot. 

Better  reasons  for  tlu^  admissibility  of  the  evidence  must  be 
given  than  those  suggc^sted  in  the  preceding  propositions,  else 
the  assignment  of  crrois  cannot  be  sustained,  as  it  is  clear  that 
the  other  evidence  in  the  case  discloses  no  I'eal  theory  of  defense 
which  the  excluded  testiuiou}'  would  tend  to  confirm. 

Some  stress  is  laid  upon  the  fact  that  one  witness  testified 
that  the  deceased  showed  him  a  pistol  after  he  was  ejected 
from  the  saloon;  but  the  answer  to  that  given  by  the  court  be- 
low is  quite  satisfactory,  which  is,  that  the  pistol  of  the  de- 
ceased was  in  the  possession  of  the  prisoner  just  before  and 
immediately  after  the  killing,  and  that  if  the  deceased  had  a 
pistol,  as  the  witness  testified,  it  i<;  evident  he  did  not  have  it 
when  ho  was  killed,  for  after  the  first  shot  he  threw  up  his  hand 
and  said, "  Don't  kill  me,  I  am  unarmed."  Declarations  of  the 
kind,  made  i/i  artlrnh  mart /'n,  are  competent  evidence;  and, 
there  being  nothing  in  the  case  to  contradict  the  statement,  it 


510 


AMERICAN  CRIMINAL  REPORTS. 


is  entitlocl  to  c:'oclit.     1  Greenl.  Ev.,  sec.  150;  Ros.  Crim.  Ev. 
(Tth  c(l.),  30. 

Four  shots  were  fired,  and  when  the  prisoner  was  arrested, 
immcdiiitely  after  the  liomicide,  ho  gave  up  three  pistols  to  the 
officer — liis  own,  the  deceased's  and  Bean's.  There  was  one 
empty  chamber  in  the  deceased's  pistol,  and  throe  empty  cham- 
bers in  lieau's,  showing  that  the  prisoner  liad  been  in  no  danger 
throughout,  except  from  the  multiplicity  of  lire-arms  which  lu; 
had  in  his  own  ])ockets. 

Attempt  is  next  made  in  argument  to  show  that  evidence  of 
previous  threats  made  by  the  deceased  is  admissible  in  behalf 
of  the  prisoner,  even  tliough  he  did  not  introduce  any  other 
evidence  which  it  tends  to  conlirm,  the  sugg(>stiou  being  that 
the  modern  decisions  su])})ort  tliat  proposition. 

Criminal  homicide,  in  order  that  it  may  amount  to  murder, 
must  have  boon  ])ei'[)etratcd  witli  malice  aforetliought;  and  the 
prosecutif)n,  to  ])rove  the  ingredient  of  malice,  may  introduce 
evidence  of  lying  in  wait,  antecedent  menaces,  former  grudges, 
or  any  formed  (h^ign  or  concerted  scheme  to  do  the  deceased 
bodily  harm.  Malice  is  the  essential  criterion  by  which  mur- 
der is  dirftinguislied  from  manslaughter,  and  of  course  it  must 
be  charged  in  the  indictmi-nt  and  proved  at  the  trial.  Acts, 
conduct  and  declarations  of  the  kind,  if  done  or  made  by  the 
prisoner,  ai'c  clearly  admissible  when  oll'ered  by  the  prosecu- 
tion; but  the  case  is  generally  ditferent  when  the  eviilence  is 
offered  in  res])rct  to  the  deceased. 

Years  ago,  evidence  was  offered  in  a  case  of  manslaughter 
to  show  that  the  deceased  was  well  known  by  the  defendant 
and  others  as  a  drunken,  <piarrelsome  man,  but  the  court  ex- 
cluded the  testimony,  holding  to  the  effect  that  the  evidence 
was  inni!at(,M-ial,  as  it  constituted  no  defense  to  the  accused. 
State  r.  FU'},1,  14  Me.,  214. 

Later,  the  defendant  in  another  jurisdiction  offered  evidence 
to  [)rove  that  the  deceased  was  a  man  of  great  muscular 
strength,  jiracticed  in  seizing  persons  by  the  throat  in  a  ])e- 
culiar  Avay,  Avhich  Avould  render  them  helpless  and  shortly 
deprive  them  of  life;  but  the  court  excluded  the  evidence,  hold- 
ing tliat  tiie  on'y  evidence  which  was  relevant  and  material 
was  the  manner  in  which  the  deceased  jissaulted  the  defendant 
at  the  time  of  the  homicide.     Co)n.  v.  Mead,  12  (iray,  109. 


WIGGINS  V.  PEOPLE, 


511 


Decided  (;;ises,  too  numerous  for  citation,  are  reported,  in 
wliicli  it  is  held  that  ovidcnce  of  tlic  bad  cliaracter  of  the  de- 
ceased is  not  admissible  in  an  indictment  for  felonious  homi- 
cide, for  the  reason  that  it  cannot  have  any  effect  to  excuse  or 
palliate  the  otfense.  lleported  cases  of  an  exceptional  charac- 
ter may  be  found,  where  it  is  held  that  evidence  of  the  dan- 
f^erous  character  of  tlic  deceased  may  be  admitted  to  confinn 
other  evidence  offered  by  the  prisoner  to  show  that  the  killing- 
was  in  self-defense,     ii  Uishop,  Trim.  Proc.  (2d  ed,),  sec.  G27. 

Difficult  (piestions  also  ai-iso  in  other  cases  as  to  the  admissi- 
bility of  previous  threats  made  by  the  deceased.  Judges  and 
text-writers  generally  agi'ee  that  such  threats,  not  communi- 
cated to  the  prisoner,  are  not  admissible  evidence  for  the  de- 
fense, where  the  cliargc  is  felonious  homicide. 

Courts  of  justice  everywhere  .agree  that  neither  the  bad  char- 
acter of  the  deceased  nor  any  threats  that  he  may  have  made 
forfeits  his  right  to  life,  until,  by  some  actual  attempt  to  execute 
iiis  threats,  or  by  some?  act  or  dcuu>nst ration  at  the  time  of  the 
kiUing,  taken  in  connection  with  such  character  and  threats, 
lie  induces  a  reasonable  belief  on  the  part  of  the  sla3'er  that  it 
is  necessary  to  deprive  him  of  life  in  order  to  save  his  own  or 
to  |)revont  some  felony  upon  his  person.  Prlvhett  v.  State,  22 
Ala.,  ;V.);  (V>///,  r.  IIUJUwiK  2  (iray.  2'.)4. 

Kxcei)tional  cases  arise  where  it  is  held  that  the  evidence 
should  1k5  rcH'eived  as  conrirnuitory  of  other  evidence  in  the 
case  tending  to  su])[)ort  the  theory  that  the  killing  was  in  self- 
defense.  Cases  of  that  character  may  be  found  where  courts 
have  ruled  that  evidence  of  the  kind  may  be  admitted  even 
though  the  prisoner  l»ad  no  knowledge  of  tlie  stime  at  the  time 
of  the  allejicd  felonious  lunnicidc;  but  there  is  not  a  well-con- 
sidored  cjiso  to  be  found  anywhere,  in  which  it  is  lield  that  evi- 
dence of  jtrevious  threats  is  admissible  as  substantive  proof 
that  the  act  of  homicide  was  committed  in  self-defense,  nor 
which  shows  that  such  evidence  is  achnissilvic  for  any  purpose, 
whether  the  threats  were  known  or  unknown  to  the  prisoner, 
except  to  coudrin  or  explain  other  evidence  in  the  case,  tend- 
ing to  justify  or  excuse;  the  homicidal  act,  as  having  been  com- 
mitted in  oi)posing  force  to  force  in  defense  of  life,  or  to  avoijl 
enormous  bodily  harm.  2  Whart.  Cr.  L.  (0th  cd.),  1020 ;  1  Hale, 
P.  C,  481. 


M-2 


AMERICAN  CRIMINAL  REPORTS. 


,'  ■  :iS 


Provided  the  uttering  of  the  threats  was  known  to  the  pris- 
oner, the  tendency  of  modern  decisions  is  to  admit  tlio  evi- 
dence, even  if  the  other  evidence  to  support  the  theory  of 
self-defense  is  shght,  and  to  exchide  it  in  all  cases  where  the 
threats  have  not  been  communicated,  unless  the  circumstances 
tend  strongly  to  inculpate  the  deceased  as  the  first  aggressor. 
People  V.  Lamh,  2  Keyes,  4(50;  Powell  v.  State,  10  Ala.,  577; 
Dupree  v.  State,  33  id.,  380. 

Examples,  almost  without  number,  are  found  in  the  reported 
cases  which  support  those  propositions,  to  a  few  of  which  ref- 
erence will  be  made. 

Violent  threats  were  made  by  the  deceased  against  the 
prisoner  in  the  case  of  StoJces  v.  l^eople,  53  IS".  Y.,  174;  and  the 
court  held  that  proof  of  the  same  was  admissible,  whether 
known  to  the  jn-isoner  or  not,  inasmuch  as  otlier  evidence  had 
been  given  making  it  a  question  for  the  jury  whether  the 
homicidal  act  was  or  was  not  perpetrated  by  the  prisoner  in 
defending  himself  against  an  attempt  of  the  deceased  to  take 
his  life  or  to  commit  a  felony  upon  his  person. 

Authorities  to  sliow  that  fear  only  is  not  sufficient  to  justify 
the  taking  of  tlie  life  of  another  have  already  been  referred  to, 
of  which  there  are  many  more.  State  v.  Collins,  32  Iowa,  38; 
Whart.  Homicide,  407. 

Pursuant  to  that  rule,  it  was  held  in  the  case  of  Xeicmmh  v. 
State,  37  Miss.,  400,  that  the  belief  on  the  part  of  tlie  accused 
that  the  deceased  designed  to  kill  him  is  no  excuse  for  the 
homicidal  fict,  unless  the  deceased  at  the  time  made  some  at- 
tempt to  execute  such  a  design,  and  thereby  induced  the 
accused  reasonably  to  believe  that  he  intended  to  do  so  iumie 
diatel}'.  Hence,  the  court  held  that  it  w.as  not  com[)etent  for 
the  accused  to  introduce  evidence  of  an  assault  that  the  de- 
ceased committed  on  him  six  weeks  before,  nor  to  give  evidence 
of  previous  uncommunicated  threats,  the  other  evidence  sliow- 
ing  that  the  deceased  at  the  time  of  the  killing  made  no  hostile 
demonstration  against  the  accused  calculated  to  show  that  the 
accused  was  in  any  danger  of  life  or  limb. 

Actual  danger  of  the  kind,  or  a  reasonable  belief  of  such 
actual  danger,  must  exist  at  the  time,  else  the  justification  will 
fail.  Repeated  threats,  even  of  a  desperate  and  lawless  man, 
will  not  and  ought  not  to  authorize  the  person  threatened  to 


WIGGINS  V.  PEOPLE. 


513 


take  tlie  life  of  the  threatener,  nor  will  any  demonstration  of 
hostility,  short  of  a  manifest  attempt  to  commit  a  felony,  justify 
a  measure  so  extreme. 

Keasonable  doubt  upon  that  subject  cannot  be  entertained ; 
but  the  supreme  court  of  Kentucky  decided  that,  where  one's 
life  had  been  repeatedly  threatened  by  such  an  enemy,  and  it 
appeared  that  he  had  recently  been  exposed  to  an  attempt  by 
tlie  same  person  to  assassinate  him,  an<l  that  the  previous 
threats  were  continued,  the  person  threatened  might  still  go 
about  his  lawful  business,  and  if  on  such  an  occasion  ho  hap- 
pened to  meet  the  threatener,  having  reason  to  believe  him  to 
be  armed  an<l  ready  to  execute  his  murderous  intention,  and  if 
he  did  so  believe,  and  from  the  threats,  the  previous  attempt  at 
assassination,  the  character  of  the  man,  and  the  circumstances 
attending  the  meeting,  he  had  a  right  to  believe  that  the  pres- 
ence of  his  advereary  put  his  life  in  imminent  peril,  and  that 
he  could  secure  his  personal  safety  in  no  other  way  than  to 
kill  the  suj)posed  assailant,  he  was  not  obliged  to  wait  until 
he  was  actually  assailed.    Bohammoti  v.  Com.,  8  Bush,  488. 

Beyond  all  doubt,  that  is  the  strongest  case  to  support  the 
tiioory  set  up  for  the  prisoner  in  this  case  to  be  found  in  the 
judicial  reports,  and  yet  it  is  obvious  that  it  does  not  make  an 
approach  to  what  is  necessary  to  constitute  a  defense  for  the 
crime  charged  against  the  prisoner  in  the  indictment, 

Exc<'pt  wliere  threats  are  recent,  and  where  accompanied  by 
acts  and  conduct  indicative  of  an  intention  to  execute  the 
threatened  |)urpose,  the  evidence  of  previous  threats  is  not 
admitted  by  the  supreme  court  of  Arkansas.  Atkins  v.  State, 
It!  Ark.,  oSi;  Pitman  v.  State,  22  id.,  .'>5T. 

Where  the  evidence  of  previous  threats  is  necessary,  in  con- 
nection with  the  other  evidence,  to  make  out  a  case  of  self- 
defense,  the  supreme  court  of  Indiana  hold  that  the  evidence 
is  admissil)le.     S/io/fer  v.  State,  37  Ind.,  (U. 

Jurists  and  text-writers  appear  to  concur  that  antecedent 
threats  aJfme,  whether  communicated  oi*  not,  will  not  justify  a 
subsetpient  deadly  assault  by  the  other  pai'ty,  unless  the  party 
who  made  the  previous  threats  manifests,  at  the  time  of  the 
act,  a  design  to  carry  the  thi'cats  into  immediate  effect.  I*eoj>/e 
V.  Si't'oygim,  37  C'al.,  <t83. 

Argument  to  establish  that  projjosition  seems  to  be  unneces- 
VoL.  IV  — 83 


5U 


AMERICAN  CRIMINAL  REPORTS. 


sary  in  this  case,  as  tlio  Icgislaturo  of  tlio  territory  have  enacted 
that  a  bare  fear  that  a  folony  is  about  to  be  committed  "shull 
not  be  sullicient  to  justify  tiio  killing"  in  such  a  case.  "It 
must  aj)])ear  that  the  circumstances  were  sullicient  to  excite 
the  feai's  of  a  reasonable  person,  and  that  the  party  killint^' 
really  acted  under  the  inlluenco  of  those  feai's,  and  not  lu  a 
spirit  of  revenge,"  showing  that  the  court  below  could  not 
have  decided  otherwise  than  they  did  without  violating  the 
statute  law  of  the  territory.    Laws  Utah,  p.  GO,  sec,  112. 

Weighed  in  the  light  of  the  adjudged  cases,  it  is  clear  that 
the  evidence  of  previous  uncommunicated  threats  is  never 
admitted  in  the  trial  of  an  indictment  for  murder,  unless  it 
appears  that  other  evidence  has  been  introduced  tending  to 
show  that  the  .act  of  homicide  was  committed  in  self-defense. 
and  that  the  evidence  of  such  threats  may  tend  to  conlinn  or 
explain  the  other  evidence  introduced  to  establish  that  defense. 
Society,  in  my  opinion,  is  deeply  interested  that  criminal  jus- 
tice shall  be  accurately  and  firmly  administered;  and,  being 
unable  to  concur  in  the  opinion  and  judgment  of  the  court  in 
this  case,  I  have  deemed  it  pro])er  to  state  the  reason  for  my 
dissent. 


People  v.  Davis. 

(C4Cal.,440.) 

Instructions  :  Reasonable  douht. 


1.  The  charge  that  the  jury  miist  be  satisfioil  of  the  guilt  of  the  prisoner  "ho- 

yond  a  re.isonablo  doubt"  is  apiilieaVile  to  all  criminal  eas(>s  as  well 
where  the  evidence  is  direct  as  where  it  is  circiunstantial.  In  the  lat- 
ter case  it  is  projier  for  the  judj^o  to  further  instruct  the  jury  so  as  to 
aid  them  in  reaching  a  conclusion  on  the  circumstances  proved. 

2.  If  any  part  of  a  singh;  instruction  ought  not  to  bo  given,  tlie  action  of  the 

trial  court  in  rejecting  the  whole  will  always  be  aflirmed. 

W.  A.  Ham's  and  S.  M.  FranJd'm,  for  appellant. 
Marshall,  attorney-general,  for  res})ondent. 

By  the  Court.    Defendant  was  found  gu'^ty  of  grand  lar- 
ceny on  circumstantial  evidence.     Counsel  for  defendant  re- 


PEOPLE  V.  DAVIS. 


615 


qiiostod  the  court  to  charge  the  jury  as  follows :  "  The  following 
principle  of  law  is  of  universal  application  m  all  cases  based 
on  circumstantial  evidence.  It  is  not  sufficient  that  the  cix*- 
cunistances  ]iroved  coincide  with,  account  for,  and  thnrelore 
render  i)robable,  the  hypothesis  sought  to  be  established,  but 
the  hypothesis  contended  for  by  the  i)rosecution  must  be  estab- 
lislied  to  an  ahuolute  moral  certainty,  to  the  entire  exclusion  of 
any  rational prohahllUtj  of  any  other  hyjiothesis  being  true,  or 
the  jury  must  llnd  the  defendant  not  guilty."  The  ofJ'ered  iii- 
struction  was  by  the  court  rejected  as  "superfluous  —  included 
in  other  instructions." 

An  insli'uction  with  reference  to  circumstantial  evidenco 
would  not  have  been  "superfluous."  The  charge,  given  in 
din'f.ont  foiins, that  the  jury  must  be  satisfied  of  defendant's 
guilt  "beyond  a  reasonable  doubt,"  is  a  legal  pro])osition  ap- 
plicable to  all  criminal  cases,  as  well  where  the  evidence  is  di- 
rect as  where  it  is  circumstantial,  and  the  court  might  very 
pro])et'ly  have  instructed  the  juiy  fui'ther  in  such  manner  as 
would  have  assisted  them  in  reaching  a  correct  conclusion  upon 
the  ciroimfitnneen  ]n'oved. 

Tlie  rule  as  laid  down  by  Greenlcaf  is :  "Where  a  criminal 
chai'gc  is  to  l)e  proved  by  circumstantial  evidence,  the  proof 
ought  to  be  not  only  consistent  with  the  prisoner's  guilt,  but 
inconsistent  with  every  other  rational  conclusion."  1  GreenL 
Ev.,  §  ;34.  The  rule  was  adopted  and  approved  in  People  u. 
jS-/n/trr,  2^  Cal.,  400,  and  followed  in  Peoph  i\  Strong,  30  Cal^ 
154.  Ami  in  People  v.  Ant/ion;/,  5<]  Cal.,  400,  this  court  held 
an  instruction  not  objectionable  which  read :  "  It  is  not  suffi- 
cient that  the  circumstances  proved  coincide  with,  account  for, 
and  therefore  render  ])rol)able.  the  hypothesis  sought  to  be  es- 
tablished by  the  prosecution,  but  they  must  exclude  to  a  moral 
certainty  every  other  hypothesis  but  the  single  one  of  guilt," 
etc. 

But  Avhen  it  is  urged  here  that  the  court  below  erred  in  re- 
jecting an  instruction  recpiested,  we  ai-e  justitied  m  reversing 
the  judgment  only  Avhen  it  appears  that  it  was  the  duty  of  the 
court  to  give  tlie  instruction  exactly  as  rociucstcd.  It  has  been 
repcatidly  hold  that  if  any  part  of  a  single  instruction  ought 
not  to  luive  been  given,  the  action  of  the  trial  court  in  reject- 
ing tht  whole  will  be  affirmed;   and  this  result  must  follow 


AMERICAN  CRIMINAL  REPORTS. 


when  any  part  of  a  siny;l«  instruction  is  so  worded  as  tiiat  it 
may  have  a  tendency  to  mislead  tbo  jury,  as  well  as  wiien 
a  part  directly  declares  that  to  be  law  which  is  not  law.  A 
philologist  may  be  able  to  say  that  the  word  "absolute,"  in  the 
instruction  rei[uested  and  rejected,  adds  no  force  to  the  words 
•'moral  certainty."  But  the  Avord  suggests  a  degi'ee  of  cer- 
tainty greater  thari  tliat  moral  certainty  which  can  be  reiu'hcd 
upon  such  evidence  as  is  securable  in  courts  of  justice.  If  tlic 
learned  judge  of  the  court  below  had  stricken  out  the  word 
''absolute"  we  certainly  couhl  not  have  held  that  it  was  erior 
on  his  part.  It  follows  that  it  was  not  error  to  decline  to  giv(! 
the  instruction  as  it  was  present«Hl. 

Judgment  and  order  ajjinned. 


State  v.  Balco. 

(31  Kan.,  405.) 

Practice  :  Arguvient  of  prosecutor  —  Libel. 

Prosectjtok  should  not  comment  on  failure  op  refendant  to  tes- 
tify.—  In  a  riminal  action,  wliere  the  prosecuting  attornoj',  in  niakin« 
Lis  argument  to  the  jury,  chiinis  that  the  defemhmt  is  guilty  J)ecausc  lie 
failed  to  testify  in  the  case  and  deny  the  facts  alleged  against  him.  and 
the  defend.uit  is,  i^ftti  wards  found  guilty  by  the  jury,  held,  that  for  such 
ii-regularity  on  the  pjirt  of  the  prosecuting  attorney,  the  defend.-mt,  oii 
his  motion,  should  be  granted  a  new  trial,  and  that  a  mere  i"  ' 
from  the  court  to  the  jury,  that  the  jury  should  not  pay  an  dh 

to  what  was  said  by  the  prosecuting  attorney  with  regard  to  l  nfend- 
ant's  failure  to  testify,  is  not  sulKcient  to  cure  the  error  conniui  h  d  by 
the  prosecuting  attorney. 

PRIVILE(iES    OF    THE    PRESS  —  GOOD    FAITH    OF    PUBLISHER. —  In   a   cHni- 

hial  prosecution  for  libel,  evidence  Wiis  introduced  tending  to  show  tliat 
the  defendant,  who  wsis  an  elector  of  Chase  county,  Kansas,  circniatcfl 
an  article  among  the  voters  of  such  county  containing  sonii'  things  tlmt 
were  untrue  and  derogatory  to  the  character  of  the  prosecuting  wit- 
ness, who  was  then  a  candidate  for  the  otlice  of  county  attorney  of  sai<l 
county ;  held,  that  if  the  supi)osed  lil)elou8  mticle  was  circulated  only 
among  the  voters  of  Chase  coimty,  tuul  only  for  tlie  purpose  of  giving 
what  the  defendant  l)elieved  to  be  truthful  information,  and  only  for 
the  purpose  of  enabling  such  voters  to  cast  their  ballots  more  intelli- 
gently, and  the  whole  thing  was  don«>  in  good  faith, —  such  article  was 
privileged,  and  the  defendant  sluiuld  l)e  acquitted,  although  the  princi- 
pal matters  contained  in  the  article  may  have  been  untrue  in  fact,  ami 
derogatory  to  the  character  of  the  prosecuting  witness. 


STATE  f.  BALCH. 
Appeal  from  Chase  County. 


617 


S.  jV.  M'ood,  Madden  Bran,  and  ^Yaters  c6  Ensv^inger,  for 
appoUants, 

W.  A.  Johmtoii,  attorney-general,  and  S.  P.  Young,  for  the 
state, 

Vai.entink,  J.  This  -was  a  criminal  prosecution  against 
George  I'alch  and  R.  ]\[.  Watson  for  an  alleged  criminal  libel. 
The  case  was  tried  before  the  court  and  a  jury,  and  the  defend- 
ants were  found  guilty  and  eacii  sentenced  to  pay  a  line  of 
$10,  and  eacli  adjudged  to  ])ay  one-half  the  costs  of  the  suit. 
The  defendants  now  ai)peal  to  this  court. 

The  alleged  lil^el  was  the  circulation,  on  November  (!,  1882, 
in  Cliase  coiuity,  Kansas,  of  the  following  printed  article, 
to  wit: 

"  Voters  of  Chase  County:  The  people  of  Chase  county  have 
not  forgotten  the  mutilation  or  changing  of  llie  election  re- 
turns one  year  ago,  and  is  it  not  time  the  people  should  know 
wlio  the  parties  Avere  that  made  tlie  clianges?  The  facts  look- 
ing in  that  direction  have,  as  yet,  never  been  made  public,  and 
perhaps  never  will,  but  circumstances  often  show  facts  that 
cannot  be  controverted,  and  in  this  case,  if  Mr.  Norton  was 
guilty  of  the  said  mutilation,  was  not  ]Vlr.  Carswcll  e(pu\lly 
so^  It  is  said  upon  reliable  authority  that  ]\Ir.  Norton  and 
Mr.  Carswell  were  together  all  the  evening  and  the  night  this 
deed  was  committed,  in  fact  sh^pt  together  in  Mr.  Norton's 
room  in  the  court-house.  If  they  were  together,  as  it  is  said, 
is  it  possible  that  ^Ir.  Norton  would  do  so  dastardly  a  trick 
without  the  knowledge  and  consent,  if  not  the  assistance,  of 
]\ri'.  Carswell  I  Voters,  think  of  this.  Also,  that  it  is  a  well 
known  fact  that  this  said  Carswell  worked  for  and  sufjported, 
with  all  his  might.  Mr.  Norton,  for  the  oltice  of  sheriff  of  Chase 
county.  Can  you  consent  to  intrust  in  the  hands  of  a  charac- 
tor  such  as  an  action  of  this  kind  would  indicate,  the  most  iin- 
p  >rtant  ollice  in  the  county,  that  of  county  attorney? 

"Gkokoe  Balch." 

It  appears  from  the  evidence,  among  other  things,  as  follows: 
"That  the  defendant  R.  M.  Watson  was  given  the  manuscript 
from  which  the  alleged  lil)elous  article  was  *  set  up '  and  printed 
by  ont^   Harris;  that  the  name  of  George  Balch,  defendant, 


618 


AMERICAN  CUIMINAL  REPORTS. 


was  signed  tlicrcto ;  that  ncitlior  the  manuscript  nor  his  sigmv 
turo  was  in  the  handwriting  of  tho  det'cndaut  George  ijak;h; 
that  dc^fendant  "Watson  set  up  tlic  article  alleged  to  be 
libelous,  printed  it  and  delivered  it,  and  gave  all  the  printed 
copies  to  the  said  Harris,  and  was  paid  for  the  same  as  a  job 
printer,  which  was  the  only  connection  ho  was  shown  to  have 
had  with  the  alleged  libelous  article;  that  the  prosL-cuting  wit- 
ness, C.  11.  Carswell,  was  at  the  time  tho  regular  democratic 
nominee  for  county  attorney,  to  be  voted  for  at  the  Novem- 
ber election,  A.  D.  1.S82;  that  the  prosecuting  witne.w,  Cars- 
weU,  did  not  procure,  cause  or  know  of  the  changes  or 
alterations  made  in  the  election  returns,  as  stated  in  said 
alleged  libel;  that  the  defendant  George  lialch  admitted  to  the 
prosecuting  witness,  Carswell,  that  ho  had  published  said 
alleged  libelous  article." 

In  November,  1881,  the  time  rcfernid  to  in  the  alleged  libol- 
aus  article,  there  were  three  candidates  for  sherilf  — William 
Norton,  F,  II.  ijaiTington  and  the  dc'IV'ndant  IJalcii, —  and  llie 
changes  refen-ed  to  were  niiule  by  taking  votes  from  IJakli 
and  i>arrington  and  adding  them  to  Norton.  The  evidence 
furtluu*  shows:  "That  i)ro.secuting  witness,  Carswell,  sla did 
to  P.  J.  Norton,  in  the  presence  of  oneC.  lierst,  that  '  they  iind 
made  too  many  changes  from  IJalch  to  Norton;  that  tliey 
should  have  taken  less  votes  from  hiin  (lialcli)  and  more  iVoni 
Barrington;  that  tho  greenbackers  were  watching  every  vote 
for  their  candidates;'  that  Jjalch,  the  defendiint,  was  at  the 
time  greenback  candidate  for  sheriff,  and  has  be(?n  at  all  times 
and  for  years  past  a  legal  voter  of  Chase  county,  Kansas." 

Tho  defendant  George  I'alch  did  not  ai)pear  j'.s  a  witnes;;, 
and  did  not  testify  in  the  case;  and  whether  the  defendant  K. 
M.  Watson  was  a  witness  or  testiiied  in  the  case  the  reccji'd 
docs  not  show. 

After  all  tho  evidence  was  introduced  in  the  case,  and  aft(>r 
tlio  charge  of  the  coui-t  was  given  to  the  jury,  the  county  at- 
torney proceeded  to  make  an  argunu'ut  in  the  case,  when  the 
following  proceedings  occurred,  as  is  shown  by  the  i-ecord, 
ivhich  procee(|ings  read  as  follows:  "The  o])ening  aruunu'nt 
of  tho  plaintilf  was  nuule  by  the  county  attoi'ney,  who,  in  tiie 
course  of  his  remarks  to  the  jury,  said  'that  it  was  in  evidence 
that  tho  libel  charged  in  the  information  was  circidated  all 


STATE  V.  BALCH. 


619 


i;u; 


over  tlio  county  with  the  name  of  the  dcfcndnnt  George 
Etilch  printtMl  thereto;  that  tlie  dofcuchmt  Balch  know  it  was 
so  circulated;  that  this  tact  made  a  prima  fao/'e  cix'io  agamst 
him;  tliat  tlio  defendant  Balch  had  not  olFercd  any  testimony 
denyin.>' that  he  signed  and  circulated  the  libel;  that  he  had 
failed  to  go  on  the  witness  stand  [emphasizing  and  pointing  to 
the  witness  chair]  and  deny  that  he  had  not  signed  or  circu- 
lated tliat  libel.'  Here  the  county  attorney  was  requested  to 
stop  by  defendants'  counsel,  who  then  and  there  excepted  to 
the  remarks  of  said  county  attorney ;  that  upon  the  attention 
of  the  court  being  called  to  the  said  remarks  he  informed  the 
county  attorney  that  they  were  improper  and  could  not  be 
made,  and  stated  to  the  jury  that  they  should  not  pay  any 
attention  to  the  same;  tliat  under  the  law  the  defendants,  or 
cither  of  them,  had  a  perfect  right  to  refrain  from  testifying 
witlio'it  having  the  failure  to  testify  commented  on  or  even 
alluded  to  by  the  state;  that  the  jury  would  violate  their  duty 
if  tliev  (considered  at  all  the  failure  of  defendant  Balch  to  tes- 
tify. That  tlun-eap:)n  the  county  attorney  turned  to  the  jury 
and  stated  to  them  '  that  he  had  forgotten,  and  had  probably 
gone  beyond  what  he  should  have  done,'  and  proceeded  in  his 
argument  without  further  allaaion  to  the  defendant  Ealch's 
failure  to  testify." 

There  are  several  questions  involved  in  this  case,  and  some 
of  them  are  dillieult.  The  lirst  question  that  we  shall  consider 
is  witli  reference  to  the  statement  made  by  the  county  attorney 
to  the  jury,  calling  their  attention  to  the  fact  that  the  defend- 
ant IJalch  had  not  testified  in  the  case  and  had  not  denied,  as 
a  witness,  that  he  had  signed  and  circulated  the  alleged  libelous 
article.  This  statement  was  in  violation  of  law,  and  under  our 
own  statutes,  and  the  decisions  of  other  courts  under  similar 
statutes,  we  think  it  will  require  a  reversal  of  the  judgment  of 
the  court  below  and  the  granting  of  a  new  trial.  Section  215 
of  the  Criminal  Code  provides,  among  other  things,  that  de- 
fendants in  criminal  cases  may  testify  in  their  own  behalf  if 
they  choose  to  do  so;  bat  also  provides  "that  the  neglect  or 
refusal  of  the  p(^rson  on  trial  to  testily  .  .  .  shall  not  raise 
any  |>rosumption  of  guilt,  nor  shall  that  circumstance  be  re- 
f(MTed  to  by  any  attorney  pros  HUiting  in  the  case,  nor  shall  the 
same  bo  considered  by  the  court  or  jury  before  wh.om  the  trial 


520 


AMERICAN  CRIMINAL  REPORTS. 


takes  place."  Laws  1871,  oh.  118,  sec.  1;  Comp.  Laws  1879. 
eh.  82,  sec.  215. 

The  decisions  above  referred  to  are  as  follows:  Loncj  v.  State, 
56  Ind.,  182;  .S'.  O.,  26  Amer.  Rep.,  19;  Hatch  v.  State,  8  Tex. 
Ct.  A])p.,  416;  S.  C,  34  Amer.  Kep„  751;  Comm.onwe<ilth  v. 
Scott,  123  Mass.,  239;  S.  C,  25  Amer.  Eep.,  87;  Austin  v.  Peo- 
ple, 102  111.,  261 ;  People  v.  Tijler,  36  Cal,  522;  St<ite  v.  Giviham,, 
decided  by  the  supreme  court  of  Iowa,  October  19,  1883  (17 
N.  W.  Kep.,  192). 

It  must  bo  remembered  that  this  statement  of  the  county 
attorney  was  not  provoked  or  called  forth  by  anythijv*,^  said  by 
the  defendant  or  his  counsel;  nor  was  it  said  incidentally  in 
some  argument  addressed  to  the  court;  but  it  was  said  in  an 
argument  addressed  to  the  jury,  and  in  an  argument  upon  the 
merits  of  the  case,  and  for  the  purpose  of  intiueneing  the  jury 
and  obtaining  from  them  a  verdict  that  the  defendant  was 
guilty  of  the  offense  charged.  In  all  ]irobability  this  state- 
ment was  made  innocently  and  inadvertently  by  the  county 
attorney,  as  he  had  been  acting  in  that  capacity  only  a  very 
short  time,  and  tliis  was  among  the  first  cases  prosecuted  by 
him.  But  still  the  rights  of  the  defendant  cannot  be  igiioretl 
or  overlooked  for  that  reason;  nor  can  the  principle  be  toler- 
ated that  convictions  for  violated  law  nuiy  b(!  ))r<)cured  or 
brought  about  by  the  inauguration  and  accoinplisluucut  of 
other  violations  of  law.  It  is  also  true  that  in  this  casi;  the 
court  below  instructed  the  jury  that  the  statenu'ut  nuule  by  the 
county  attorney  should  not  be  allowed  to  work  any  pri^jiidice 
to  tlie  rights  or  interests  of  tlie  defendant.  But,  under  tlu^ 
authorities,  the  evil  done  by  such  an  infringement  of  the  law  — 
an  infringement  of  law  by  the  prosecuting  otlicer  of  the  state  — 
cannot  be  remedied  or  cur<!d  by  any  mere  instructions  from 
the  court.  The  only  complete  remedy,  if  the  defeiidant  is  c(^ii- 
victed,  is  to  grant  liim  a  new  trial  on  his  motion.  Of  coiu'se, 
if  he  does  not  want  the  new  trial,  or  does  not  make  a  nujtion 
therefoi",  lie  should  be  sentenced. 

The  defendants  also  claim  that  the  case  was  tried  in  the 
court  helow  upcm  an  erroneous  theory.  The  defendants  aslced 
the  court  to  give  several  instructions  to  the  jury,  embodying 
in  substance  the  ])roposition  that  if  the  said  su|)j)os(>d  libelous 
article  was  circulated  only  among  the  voters  of  C'hase  county. 


STATE  V.  BALCH. 


521 


and  for  the  purpose  of  giving  tliem  truthful  information  con- 
cerning the  character  of  C.  II.  Carswell,  who  was  then  a  can- 
didate for  the  ottice  of  county  attorney,  and  merely  for  the 
purpose  of  enabling  such  voters  to  vote  intelligently  upon  the 
question  as  to  who  was  the  most  suitable  person  to  lill  such 
othce,  and  the  same  was  circulated  in  good  faith  and  for  no 
bad  purpose,  then  that  the  defendants  should  be  acquitted. 
One  of  said  instructions  roads  as  follows:  "(I)  It  is  proper, 
justifuible,  and  considered  in  law  privileged,  for  any  voter  to 
discuss  publicly,  in  writing  or  orally,  the  qualifications,  attain- 
niouts,  character  and  acts  of  any  person  who  offers  himself  as 
a  candidate  for  a  public  office,  and  who  as  such  candidate  so- 
licits the  votes  of  voters  for  such  oflfice.  But  such  discussion 
must  be  for  the  purpose  of  ascertaining  the  truth  in  relation  to 
such  candidate,  tiiat  an  intelligent  ballot  niay  bo  cast  for  or 
against  such  candidate,  and  must  be  confined  to  such  purpose, 
and  within  roasonaldo  limits;  and  if  such  discussion  shall  be 
actuated  by  malice,  or  for  the  purpose  of  injuring  such  person, 
it  cannot  be  considered  justifiable  or  privileged." 

The  court  I'cfiised  to  give  each  and  all  of  the  instructions 
asked  for  by  tlie  defendants;  and,  in  lieu  of  the  instructions 
asked  for  by  the  defendants,  gave  the  following  instructions: 
"  Ihit  it  is  projx'r  at  this  jwint  to  instruct  you  that  the  general 
rule  that  the  law  ])resumos  malice  from  the  fact  of  the  publica- 
tion of  libelous  matter,  unless  truth  and  good  motives  are 
shown,  is  subject  to  some  exceptions.  The  law  recognizes,  under 
certain  peculiar  circumstances,  what  ace  termed  privileged  com- 
municati<ms, —  that  is,  certain  communications  which  in  their 
nature  and  circumstances  are  such  that,  although  containing 
d(ifamatory  matter,  they  are  hold  in  their  general  tendency  to 
be  bonoticial  rather  than  hurtful,  if  made  honestly,  and  with  a 
view  to  the  public  welfare  or  advantage,  and  for  that  reason 
the  rule  is  n^laxed  as  to  tlie  inference  of  malice  from  the 
fact  of  publication.  Somewhat  of  this  nature  are  fair  and 
pertinent  criticisms  on  the  (pialilicationsof  candidates  for  office, 
addn^ssod  to  the  electors  whose  votes  the  candidates  ask.  Tlio 
true  test  of  such  cases  is  the  good  faith  and  honesty  of  the  pub- 
lication. AVas  it  made  for  tlu>  piildic  benefit,  or  was  the  occa- 
sion simply  a  cloak  to  cover  malice^  Malice  in  such  cases  need 
not  be  hatred  or  ill-will,  but  any  nn-kless  or  wanton  disposition 
to  do  a  wrongful  act  without  excuse  or  justificati(m." 


523 


AMERICAN  CRIMINAL  REPORTS. 


Prior  to  tlie  giving  of  the  foregoing  instructions  the  court 
hiul  given  all  necessary  instructions  with  roft'icnce  to  the  gen- 
eral law  of  libel,  and  the  law  of  this  case,  except  tliat  it  luul 
not  given  any  instructions  with  rctercnce  to  privileged  com- 
munications or  conditionally-privileged  communications.  Tlieso 
yivior  instructions,  without  the  modilications  contained  in  these 
subsequent  instructions,  would  have  icijuired  the  jury  to  llnd 
the  defendants  guilty.  They  were,  in  substance,  tluit,  if  tlie 
sujjposed  libelous  matter  contained  in  said  circular  was  dcfam- 
iitory  and  untrue,  malice  should  bo  pi'esumcd,  and  the  defend- 
ants found  guilty,  notwithstanding  the  fact  that  the  publication 
thereof  might  have  been  in  good  faith,  and  the  defendants 
might  have  believed  the  same  to  be  ti'ue.  And  thcsubi,e(pieiit 
instructions  above  quoted,  relating  to  privileg(>d  communica- 
tions, were  given  as  modilications,  explanations,  limitations  or 
exceptions  to  the  rule  of  law  previously  enunciated.  The  court 
itself  seems  to  call  them  "  cxcej)tions."  It  is  dilllcult  to  say 
that  the  instructions  of  the  court  below  arc  erroaeous;  and 
yet  that  portion  of  the  instructions  relating  to  privileged  com- 
munications is  so  vague  and  indelinite  as  i!ossil)ly  to  i'end(M-  tlio 
entire  instructions,  taken  as  a  whole,  misleading,  delusive;  and 
erroneous.  The  court  docs  not  say  that  any  communicalicjns 
may  ever  bo  so  privileged  as  to  overturn  the  rule  of  ])resimip- 
tive  malice,  or  to  render  such  rule;  inapplicable  or  not  relevant 
under  the  facts  of  the  case;  but  the  coui-t  simply  s:iys  that  in 
s;)me  cases,  and  under  "  jieculiar  circumstances,"' "  the  rule  is 
relaxed."  Neither  does  the  court  say  in  express  terms  that  the 
communications  might  under  any  circumstances  be  so  |)iivi- 
legcd  as  to  authorize  an  acquittal  of  the  defendauls.  ^'ouu'- 
thing  of  this  kind,  wo  thiidc.  ought  to  have  becMi  said.  'J'lie 
instructions  with  regard  to  constructive  or  pr»^sumptivi>  malid^ 
recpiired  it,  and  the  instructions  with  reference  to  pi-ivih^ged 
communications  should  have  I)een  nuido  more  explicit  and 
delinitc  than  they  were.  If  the  supposed  libelous  article  was 
circulated  only  among  the  votei's  of  Chase  county,  iind  only 
for  the  purpose  of  giving  what  the  def(Midants  believed  to  ho 
truthful  information,  and  only  for  tiio  ])urpose  rtf  cnablin;;'  such 
voters  to  cast  theii-  ballots  more  intelligently,  and  the  whole 
thing' was  (lo?ie  in  good  faith.  W(»  think  the  article  was  ]ti'i\i- 
loged  and  the  defeiidiints  should  have  been  aeipiitled.  allhougli 
the  principal   uuiW.ers  (fintaim'd  in   the  arliele  were  untnu!  in 


EX  PARTE  SONTAG. 


523 


fact,  and  (lorofi:atory  to  tlic  charactor  of  tlie  prosocutlng  wife- 
iiL'SS.  Sco  Touush.  Shuul.  6i  Lib.,  fJ.^  ^41,  24^,  244:,  247,  200;  2 
Wliart.  Criin.  Law  (8th  cd.),  §  1G3G;  1  Kuss.  Ci\,  244,  245; 
Com.  V.  Chipj),  4  j\[ass.,  103;  Sweeney  v.  B.tker,  13  W.  'Va.,  100, 
183;  8.  6'.,  31  Ainer.  IJcp.,  758,  75'J;  Wh'dc  v.  Nicholls,  44  U. 
S.  (3  How.),  200;  Brow  v.  Hatlumay,  95  Mass.  (13  Allen),  231); 
LewiH  v.  dnqmuin,  10  K  Y.,  309;  'KJ'incU  v.  CoHy,  4!'.  K.  Y., 
427;  note  to  2litn8te)'  v.  Lomh,  23  Amor.  Law  r.eg.  (N,  S.),  22 
ct  scq.;  Bi'Hjfjs  v.  Garrett,  18  Cent.  Law  J.,  109,  and  note,  ])ago 
112.  Generally,  we  think,  a  person  may  in  good  I'uith  ])ublish 
whatever  he  may  honestly  believe  to  be  true,  and  essential  to 
tlie  protection  of  his  own  interests,  or  the  interests  of  the  per- 
son or  persons  to  whom  lie  makes  the  publication,  Avitliout 
committing  any  public  oll'ense,  although  what  he  publishes 
may  in  fact  not  be  true,  and  may  be  injurious  to  the  character 
of  others.  And  we  further  think  that  every  voter  is  interested 
in  electing  to  oflice  none  but  persons  of  good  moral  character, 
and  such  only  as  are  reasonably  qualified  to  perform  the  duties 
of  the  ollice.  This  applies  with  great  force  to  the  election  of 
county  attorneys. 

Willi  the  view  that  we  have  taken  of  the  questions  already 
discussed,  it  is  not  necessary  to  discuss  any  of  the  other  ques- 
tions raised  in  this  case. 

The  judgment  of  the  court  below  will  bo  reversed,  and  causo 
remanded  for  a  new  trial. 

(All  the  justices  concurring.) 


Ex  Pautb  Sontao. 
(C4Cal.,  525.) 

Practice:  Grand  juror. 

A  grand  juror  cannot  be  foiupcUod  to  disclose  liow  bo  Ci-  any  otbcr  juror 
voted  upon  an  indictni(!nt,  but  be  may  be  re  luireJtogivo  tlio  testimony 
of  a  pai'ticular  witness  in  a  matter  before  tbem. 

In  Bank. 


Darwhi  <(';  Murphy,  for  petitioner. 
Tyltir  tC'  Fhiornoy,  for  r(>s|)ondent. 


U  i 


524 


AMERICAN  CRBIINAL  REPORTS. 


<i%' 


McKiNSTKY,  J.  The  petitioner  was  committed  to  prison  by 
the  superior  court,  as  being  guilty  of  contempt  in  refusing  to 
answer  the  question  (upon  motion  to  set  aside  an  indictment) 
whether  he  as  grand  juror  voted  for  ihiding  the  indictment. 
The  form  of  the  oath  in  general  use  for  centuries  binds  the 
grand  juror  to  preserve  inviolate  the  secrets  of  the  grand  jury 
room.  Public  policy  would  seem  to  forbid  vain  disclosures 
made  to  gratify  idle  curiosity.  "  Eut,"  says  Thompson  and 
Merriam,  "  when  for  the  purposes  of  public  justice,  or  for  the 
protection  of  j)rivate  rights,  it  hecmncs  neces,sa)'i/,  in  a  court  of 
justice,  to  disclose  the  proceedings  of  the  grand  jury,  the  better 
authorities  now  hold  that  this  may  be  done.  It  is  obvious  that 
there  are  certain  transactions  of  the  grand  jury  room  which  it 
can  never  be  for  the  interests  of  justice  to  disclose ;  for  examine, 
what  jHniicuIar  J u?'o/'«  concnvred  in  or  oi)posed  the  finding  of 
the  indictment,  what  opinions  were  expressed  by  various  mem- 
bers of  the  body.  In  res])ect  to  such  matters  the  injunction  of 
secrecy  may  well  be  perijctual."     Thouip.  it  ^I.  Jur.,  §  703. 

The  furthest  any  of  the  cases  cited  In'  the  text-writers,  from 
whom  we  have  (pioted,  have  gone  towards  permitting  an  in- 
quiry by  means  of  the  testimony  of  grand  jurors  themselves 
into  the  mode  of  finding  an  indictment,  is  to  allow  the  ques- 
tion, did  twelve  grand  jurors  concur  in  finding  the  indictment? 
Thus,  in  Loio^s  Came,  4  Me.,  431),  that  question  was  pei-mittcd, 
but  both  the  judges  wlio  delivered  opinions  in  that  case  were 
careful  to  exclude  any  infei-ence  that  it  would  be  pi'()))er  to  in- 
quire how  a  particidar  juror  voted.  Weston,  J.,  said:  "The 
oath  of  the  grand  juror  reipiires  him  to  keep  secret  the  state's 
counsel,  his  fellows',  and  his  own.  Of  this  character  may  be, 
Avhat  particular  jurors  agi-eed  or  dissented  upon  tlie  (piestions 
whether  a  true  bill  or  not.  .  .  .  But  the  fact  wlietiicr  twelve 
or  more  concurred  or  not  in  the  bill  is  not  a  wcfet.  It  is  a  r< - 
suit  which  they  are  required,  through  their  organ,  the  forcniaii, 
to  make  known."  And  Preble,  J.,  added:  "■  Iloir  juiy  juror 
voted  is  a  secret  no  juror  is  permitted  to  disclose;  but  wlietlici' 
twelve  of  their  number  concurred  in  finding  a  bill  in  not  a 
secret  of  the  state,  their  fellows,  or  their  own.  It  is  a  fact  they 
of  necessity  profess  to  disclose  every  time  tliey  ])roniulgate 
thfir  decision  upon  any  bill  laid  before  them."  The  supremo 
court  of  Maine  in  effect  lield  that  the  fact  whether  twelve  con- 


EX  PARTE  SONTAG. 


525 


ciuTcd  in  finding  an  indictment  could  be  inquired  into  by  tbe 
testimony  oi  tlio  grand  jurors,  on  motion,  but  that,  in  pursuing 
siicli  in(]uiry,  the  grand  juror  couhl  not  be  required  to  state 
whether  he  voted  for  or  ngainst  the  indictment.  In  other 
courts,  however,  the  inquiry  has  been  limited  still  more.  "  By 
such  courts  grand  juroi's  will  not  be  permitted  to  testify 
whether  thoy  voted  at  all,  how  they  or  their  companions  voted, 
or  whetlier  twelve  concurred  in  the  finding."  Thomp.  «fe  M. 
Jur.,  §  7(»-t,  and  cases  cited  in  note, 

Xo  case  has  been  called  to  our  attention  in  which  it  has  been 
held  that  a  grand  juror  could  be  compelled  to  answer  how  he 
voted  with  respect  to  tlie  finding  of  a  particular  indictment. 
In  this  state  the  whole  matter  is  regulated  by  statute.  The 
oath  of  the  grand  juror  is:  "You  will  keep  your  own  counsel 
and  that  of  your  fellows  and  of  the  government,  and  will  not, 
except  when  recpiired  in  the  due  course  of  judicial  proceedings, 
disclose  the  testimony  of  any  witness  examined  before  you,  nor 
anything  which  you  or  any  other  grand  juror  nuiy  have  said, 
nor  the  manner  in  which  you  or  any  other  grand  juror  may 
have  voted  on  an}'  matter  before  you."     Penal  Code,  903. 

Secti(m  1)20  of  the  Penal  Code  reads:  "  Every  member  of 
the  grand  jury  must  keep  secret  Avhatever  he  himself  or  any 
other  grand  juror  mav  have  said,  or  in  what  manner  he  or  anv 
other  grand  juror  may  have  voted  on  a  matter  before  them; 
but  nuiy,  however,  be  required  by  any  court  to  disclose  the  tes- 
timony of  a  witness  examined  before  the  grand  jury,  for  the  pur- 
j)ose  of  ascertaining  whether  it  is  consistent  with  that  given  by 
the  witness  before  the  court,  or  to  disclose  the  testimony  given 
before  them  by  any  person,  upon  a  charge  against  such  person 
for  perjury  in  giving  his  testiuumy  upon  trial  therefor." 

Section  l»20  specifies  the  exceptional  cases  in  which  a  court 
may  re([nire  a  grand  juror  to  disclose  any  matter  transpiring 
in  the  jury-room,  and  provides  that  lie  must  keep  secret  other 
nuitters,  including  "in  what  manner  he  or  any  other  grand 
juror  may  have  voted  on  a  nuitter  before  them."  Eeading 
together  sections  1>(>;{  and  i>2(»,  it  is  a])|)arent  that  the  excep- 
tion stated  in  the  fornun-  section  isinteiuled  to  apply  only  to  the 
clause  which  innnediately  succeeds  it  —  "You  will  not,  except 
v'lii'i)  /v'(/*<//r</ in  the  due  course  of  judicial  proceedings,  disclose 
the  testimony  of  any  witness  examined  before  you,  nor  [will 
you  disclose]  anything  which  you  or  any  other  grand  juror  may 


5iiG 


AMERICAN  CKIMINAL  REPORTS. 


I'.ave  said,  nor  tlie  manner  in  Avhich  yon  or  any  other  gi-jind 
jnror  may  liavo  voted,"  etc.  Thus  road,  the  ;iulm'i>ti:/U  section, 
920,  may  bo  given  its  ctTect;  tlie  last  chiuso  s]),"cifyin,';^  the 
matters  with  rer.pect  towhieh  a  grand  jnror  /iiff;//)e  tvj n >'/•/'// io 
make  diseh)sui'e  "in  the  due  course  of  judicial  ])roceedings." 
The  inquiry  must  be  confined  to  such  matters,  that  is  to  say, 
the  grand  juror  can  only  be  required  to  state  what  was  the 
testimony  of  a  Avitness  examined  before  the  grand  jury. 

It  has  been  argued  with  much  ingenuity  that  the  i)i'ovision 
of  the  law  "which  authorizes  a  motion  to  set  aside  an  indict- 
ment Avliero  it  has  not  l)een  "  fouiul "'  as  i)rescribe(l  by  the  code 
is  of  no  benefit  to  a  defendiint  unless  he  is  permitted  to  prove 
that  it  was  not  duly  found  by  the  testimony  of  the  grand  jiuors 
themselves,  who  are  alone  pi'csent  when  an  indictment  is  voted 
upon.  Penal  Code,  91)5.  It  is  contended  that  the  right  to 
move  on  the  ground  that  the  indictment  was  not  pi'o])erly 
found  necessarily  includes  the  right  to  prove  the  fact  by  liio 
testimony  of  those  only  who  can  know  the  fact.  IJut  there 
arc  many  legal  rights  which  cannot  be  established  by  certain 
witnesses.  Thus  it  is  well  settled  that  a  petit  juror  cannot  im- 
peach his  verdict,  although  a  defendant  nuiy  move  for  now 
trial  on  the  ground  of  unfaii'uess  in  its  rendition.  P<;nple  v. 
Wi/man,  15  Cal.,  70.  AVc  can  imagine  cases  in  which  it  might 
be  possible  to  prove  that  less  than  twelve  voted  for  an  indictment 
without  resorting  to  the  testimony  of  the  grand  jurors  them- 
selves. The  mere  inconvenience  or  diiliculty  of  proving  the  fact 
ought  not  to  overrule  the  many  grave  objections  to  a  procedure 
not  only  not  directly  authorized,  but  expressly  forbidden  by  the 
code,  which  may  interfere  with  the  coui[)lete  freedom  of  ex- 
posure of  alleged  oifensos  which  it  is  the  design  of  the  inUit'.i- 
tion  of  grand  juries  to  secure,  and  con'.lict  with  other  )>rineiples 
of  public  ]>oliey,  which  are  subserved  by  keeping  inviolate  the 
secrets  of  the  grand  jury  room  —  exc(^pt  when  their  disclosure 
is  absolutely  necessary.  Xo  serious  injury  can  arise  from  pro- 
hibiting the  question  asked  the  petitioner.  The  cases  must  bo 
rare,  indeed,  in  which  a  forenmn  will  dare  altem[)t  to  practice 
fraud  upon  his  fellow  juroi-s  by  indorsiug  and  presenting  a  bill 
not  in  fact  foiuul,  and  if  siieli  a  fraud  is  praxstieed  tlui  law  will 
provide  a  proper  punishment  by  direct  proceedings  against  the 
party  guilty  of  the  fraud. 

Finallv.  as  said   bv   Ilvliind.  J.,  in  Sf,tf,>  r.  Bdh »'.  '20  Mo.. 


J-|v, 


PEOPLE  V.  REESE. 


627 


oJ58,  an  innocont  porson  will  not  bo  injured  by  limiting  the  in- 
([iiiry,  for  he  can  always  vindicate  himself  in  a  trial  on  tho 
merits. 
Let  tho  petitioner  bo  discharged  from  custody. 


People  v.  Reese  and  others. 

(2  Pac.  Rop.  (4  Utah),  Gl.) 

Practice:  Juror — Waiver. 

Wlicro,  in  a  criminal  procotHlinp:,  a  man  prosents  him:^olf  in  court  in  obedi- 
ence to  a  siiu\nions  requiriiij;  Iiiiii  to  api;e!ir  as  a  juror,  and  stat<  s  thrt 
lie  is  a  citizen  of  tiie  United  Stales,  and  the  defendant  h:is  no  reason  to 
doulit  the  truth  of  tlie  statv>inent,  tho  riglit  to  a  jury  of  tswlve  eitizcr.s 
of  the  United  States  is  not  waived  by  an  examination  of  tlie  in'oixwcd 
juror  touching  his  other  (|ualirications.  If,  after  verdict,  the  defendant 
learns  that  the  juror  was  mistaken,  and  that  lie  was  not  a  citizen  of 
the  United  States,  ho  is  entitled  to  a  new  trial,  it  not  apjK'aring  that 
there  was  any  negligence  on  the  part  of  t!ie  defendant  that  would  work 
a  waiver  of  the  constitutional  riglit  to  a  proper  jury.  A  defendant  has 
the  right  to  presume  tliat  none  but  the  naaies  of  citizens  of  the  United 
States  arc  upon  the  list  from  which  jurors  ai-e  drawn. 

P.  J.  F«?i  Zz7<?,  for  the  people. 
Suthedand  c£'  McJJride,  for  appellant. 

Twiss,  J.  The  indictment  in  this  case  charges  the  defend- 
ant, Ellis  lieesj,  and  four  others,  with  the  crime  of  house- 
breaking. Upon  the  trial  there  was  a  verdict  of  guilty.  Tho 
detendants  lilcd  a  motion  for  a  new  trial,  based  upon  several 
groumls,  one  of  which  was  that  Joseph  S.  Morris,  one  of  tho 
jury  befoi'o  which  the  defendants  were  tried,  was  not  a  citizen 
of  the  United  States.  The  allidavit  in  support  of  tho  motion 
also  stated  that  neither  of  the  def(>ndants  knew  or  had  reason 
to  believe  that  Morris  was  not  a  citizen,  until  after  the  verdict. 
These  statements  were  not  denied  by  the  prosecution,  but  were 
admitted  to  be  true.  The  juror,  upon  his  examination  under 
oath  as  to  his  qualilications,  said  he  was  a  citizen  of  the  United 
States.  The  motion  for  a  new  trial  was  overruled,  and  judg- 
ment was  rendered  on  tho  verdict.  The  defendants  appealed 
to  this  court. 


528 


AMERICAN  CRIMINAL  REPORTS, 


Tlie  only  c|uesti()Ti  before  us  is,  Did  tlio  court  below  err  in 
overruling  tlie  motion^  The  act  of  con;L,'re.ss,  approved  June 
23,  ISTl,  commonly  known  as  the  Poland  bill,  provides  tlmt 
the  clerk  of  the  district  coiu't  in  each  judicial  district,  and  the 
judge  of  })rol)ate  of  the  county  in  whicli  the  district  court  is 
next  to  be  holden,  shall  prepare  a  jury  list  of  two  hundi'ed 
names,  citizens  of  the  United  States,  from  which  j^rand  and 
petit  jurors  sliall  be  drawn.  The  criminal  procedure  act  of 
this  territory  provides  that  "every  male  citizen  of  the  United 
States  is  an  eligible  juror,  who  is  over  twenty -one  years  of 
age,  and  who  possesses  certain  other  tpialifications  specifically 
stated."  The  jui'ors  being  drawn  from  this  list,  prepared  in 
the  light  of  these  two  statutory  [)rovisions,  a  defendant  may 
reasonably  presume  that  the  names  of  none  but  citizer.s  of  the 
United  States  are  ui)on  it,  and  we  are  of  the  opinion  that  wlicu 
a  man  presents  himself  in  court,  in  obedience  to  a  summons 
requiring  him  to  aj)pear  as  a  juror,  and,  in  answer  to  a  (|iies- 
tion  put  to  him  under  the  direction  of  tlic  court  as  to  his 
qualiiications  as  a  juror,  says  he  is  a  citizen  of  the  United 
States,  and  the  defendant  in  a  criminal  cause,  charged  witli 
a  felony,  has  no  reason  to  doubt  tiie  truthfulness  of  said  state- 
ment, such  defendant  may  examine  such  jiu'or  as  to  his  (p;ali- 
lications  inider  tlie  territorial  statutes  without  further  refei'entc 
to  the  primal  or  fundamental  qualilication  of  citizensliip,  al- 
though after  the  verdict  he  may  learn  that  the  jiu'cn-  was 
mistaken  in  his  statement,  and  that  in  fact  he  was  not  a  citi- 
zen, and  not  thereby  waive  his  right  to  a  trial  by  a  constitu- 
tional jury  of  twelve  men,  possessing  the  qualiiications  of 
citizenship.  Hill  v.  I^eople,  IG  Mich.,  351;  Quhi/i  v.  IlaUnrt, 
52  Vt.,  3(»5.  As  there  was  not  only  no  intention  to  waive 
this  (pialification,  but  no  negligence  or  want  of  watchfulness 
on  the  part  of  the  defendants,  which  ordinarily  would  work 
a  waiver  of  a  right,  we  cannot  hold  that  the  facts  in  this 
case  are  such  as  should  dei)rive  the  defendants  of  this  impor- 
tant constitutional  right. 

The  court  is  therefore  of  the  o[)inion  that  the  motion  for  a 
new  trial  ought  to  have  been  sustained  and  a  new  trial  granted; 
that  the  judgment  of  the  district  court  l)e  reversed,  the  case 
remanded,  and  a  new  trial  ordered. 


i:r;; 


STATE  V.  MOSLEY. 


529 


State  v.  Moslet. 

(31  Knp.,  355.) 

Practice  :  Principal  and  accessory  —  Retnarks  of  prosecutor. 

1.  The  statute  authorizes  the  charging  of  an  accessory  before  the  fact  aa  a 
principal.    State  v.  Cassadij,  13  Kan.,  550. 

'i.  Upon  tlie  trial  of  an  accessory  l)ofore  the  fact,  the  record  of  the  conviction 
of  tlie  principal  is  proof  i^rima  facie  of  that  fact ;  hut  this  is  not  con- 
clusive, and  other  evitlenco  of  the  commission  of  the  crime  by  the  prin- 
cipal is  admissible. 

3.  Upon  the  trial  of  a  defendant  charged  with  a  criminal  offense  the  latter 
rested  without  testifying.  Tiio  state  introduced  a  witness  and  offered 
to  i)rovo  certain  facts,  to  which  the  defendant  objected  as  not  being 
l)r()i)er  rebuttid.  Thereui)on  the  county  attorney  said  to  the  court,  in 
the  hearing  and  presence  of  the  Jury:  "  Your  Honor,  we  liad  a  right  to 
presume  that  the  defendant  would  testify  as  a  witness  in  his  own  behalf, 
in  which  case  this  evidence  would  have  been  proper  rebuttal,  and,  he 
having  failed  to  do  so,  we  claim  the  right  to  introduce  it  now."  Held, 
that  these  remarks  to  the  court  were  not  such  an  infringement  upon  the 
statute  forbidding  the  prosecuting  attorney  to  refer  to  the  fact  that  the 
ilefeiulant  did  not  testify  in  his  own  behalf  as  requires  us,  under  the  cir- 
cumstances of  this  case,  to  grant  a  new  trial. 

Ajipcal  from  Lyon  County. 

W.  A.  Jolniston,  attorney -gen  oral,  J.  Jay  Buck  and  ./,   W. 
F<  Ighnn,  for  tlie  state. 
I^eyto)),  Sanders  tt?  Peyton,  for  ap[)ellant. 

IIoKTON,  C.  J.  On  June  5,  1882,  Mary  Isabel  Martin  and 
her  son,  E.  D.  Afosley,  were  Jointly  cliarged  witli  the  murder 
of  Loraine  M.  Iveiger,  avIio  died  May  28,  1882,  from  the  effect 
of  ])oison.  The  trial  of  Mary  Isabel  ]\Iartin,  the  mother,  was 
commenced  on  June  12,  1882.  A  verdict  of  guilty  of  murder 
in  the  lirst  degree  was  rendered  against  lier,  and  on  Decem- 
ber 29,  1882,  she  was  sentenced.  The  defendant  Mosley  was 
tried  in  February  following,  and  convicted  of  murder  in  the 
first  degree  for  counseling,  aiding  and  abetting  his  mother  in 
the  commission  of  the  murder  of  Mrs.  Keiger.  Upon  the  trial 
the  record  of  the  conviction  of  JVIary  Isabel  Martin  was  intro- 
duced in  evidence,  and  the  court  also  permitted  witnesses  to 
testify  to  statements  made  by  her  a  half  hour  after  Mrs.  Keiger 
died,  tending  to  show  she  was  guilty  of  poisoning  her.  The 
court  instructed  the  jury  that  the  record  of  the  conviction  of 
Mrs.  Martin  was  prhna  facie  evidence  of  her  guilt.  All  of 
Vol.  IV  — 84 


ci  ■;■-:) 


530 


AMERICAN  CRIMINAL  REPORTS, 


these  rulings  are  complained  of.  Tbo  objections,  liowevoi", 
are  unavailing.  Section  287,  cli.  PA,  Coinp.  Laws  1ST!>,  roads: 
"Every  person  who  shall  ho  a  principal  in  the  second  device 
in  the  commission  of  any  felony,  or  who  sliall  be  an  ae- 
cessory  to  any  murder  or  other  felony  bel'oi'e  the  fiutt,  shall, 
upon  ccmviction,  be  adjudged  guilty  of  the  oU'ense  in  the  same 
degree  and  punislied  in  the  same  manner  as  herein  prescrilu'il 
with  resp(^ct  to  the  principal  in  the  first  degree."  And  section 
115, ch.  S*2,  Comp.  Laws  1ST!>,  provides:  ''  Any  jxM-son  who  coun- 
sels, aids  or  abets  in  the  commission  of  any  oU'ense  may  ho 
charged,  tried  and  convicted  in  the  same  manner  as  if  he  were  a 
principal."  AVhile  these  sections  of  the  statute  auth<tri/.ed  tlie 
chari!;in<x  of  defendant  —  an  accessory  Itefori!  the  fact  —  as  a 
principal,  to  convict  him  it  was  necessary  to  establish  that  tlio 
mother,  Mary  Isabel  Martin,  had  poisoned  the  deceased,  li 
was  not  error  to  allow  facts  to  ?)e  sliown  on  the  trial,  there- 
fore, tending  to  prove  tiie  guilt  of  tlx^  priiu-ipal,  ^lary  Isahel 
Martin.  Sfatc  v.  Caxxitthj,  J '2  Kan.,  .'».")().  The  j-ectml  show- 
ing her  conviction  was  proof  itr'ivia  j\me  of  that  fact,  but  this 
was  not  conclusive,  and  other  evidence  of  the  commission  of 
the  crime  by  her  Avas  admissible,  [jvij  t.  J^cojile,  80  N.  Y.. 
.327;  AntohJ  r.  Sfate,  9  Te.K.  Ct.  Apj).,  4;}."i. 

Upon  the  trial,  after  the  defendant  had  rested  without  testi- 
fying, the  state  introduced  a  witness, —  one  ^larsli, —  and  of- 
fered to  prove  certain  facts,  to  which  the  defciulant  objected 
as  not  being  proper  rebuttal.  ThereujxMi  the  comity  attorney 
said  to  the  court:  "Your  honor,  we  had  a  right  to  presiiiiio 
that  the;  defendant  would  testify  as  a  witness  in  his  own  beliaU', 
in  which  case  this  evidence  would  liuvo  been  projier  rebuttal, 
and  he  having  failed  to  do  so,  we  claim  the  right  to  introduce 
it  now."  It  is  claimed  that  in  using  this  language  to  the  court. 
in  the  hearing  and  presence  of  tlui  jury,  tlie  county  attorney 
was  guilty  of  such  misconduct  that  wurrantij  tlie  granting  of  a 
new  trial.  This  claim  is  made  under  the  ))rovision  of  section  1, 
ch.  118,  Laws  1881,  which  reads:  "  And  provided  further,  tlial 
the  neglect  or  refusal  of  the  person  on  trial  to  testify,  or  of  a 
wife  to  testify  on  behalf  of  her  husband,  shall  not  raise  any 
presumption  of  guilt,  nor  shall  the  circumstance  be  rcl'ened 
to  by  any  attorney  prosecuting  the  case."  "  The  neglect  or 
refusal "  of  the  defendant  to  testify  was  not  referred  to  by  the 


STATE  V.  MOSLEY. 


681 


county  attorney,  except  incidentally  to  the  judge  of  the  court, 
in  his  argument  favoring  the  introduction  of  evidence.  Wo 
understand  the  statute  is  explicit  that  when  a  defendant,  in  a 
criminal  cause,  declines  to  testify  in  liis  own  behalf,  absolute 
silence  on  the  subject  is  enjoined  on  counsel  in  their  argument 
on  the  trial,  and  that  the  courts  will  hold  prosecuting  attorneys 
to  a  strict  observance  of  their  duty  in  this  respect  {State  v. 
(imham,  17  N.  W.  Kep.,  192;  Long  v.  Stat<;,  15  Ind.,  182;  Cam. 
V.  Scott,  Vl^  Mass..  215!));  yet  we  do  not  think  the  incidental 
allusion  to  the  court  by  the  county  attorney,  under  the  circum- 
stances, was  such  misconduct  as  requires  us  to  grant  a  new 
trial.  The  remarks  of  the  county  attorney  were  not  made  in 
an  address  to  the  jury,  were  not  directed  to  the  jury,  nor  in- 
tended for  the  jury.  It  is  possible,  and  more  than  probable, 
that  the  members  of  the  jury  lieard  the  renuirks,  as  tliey  were 
uttered  in  their  presence,  but  the  county  attorney  evidently  did 
not  intend  to  infringe  upon  the  ])rovisions  of  the  foregoing 
statute,  and  we  cannot  rcgai-d  his  remarks,  made  as  they  were, 
as  mato'ial  ei-ror.  Call-'niK  n. State,  IS  Ohio  St.,  3GG.  An  ex- 
amination of  the  atndavits  does  not  satisfy  us  that  the  county 
attorney,  in  his  closing  argument  to  the  jury,  referred  to  the 
defendant's  failure  or  refusal  to  testif}'  in  his  own  behalf.  The 
language  of  the  county  attorney  was  concerning  the  trial  of 
Mary  Isal)el  Martin,  and  the  failure  of  her  son  to  testify  as  a 
witness  in  that  case.  This  was  made  in  ansvcrto  the  remarks 
of  one  of  the  attorneys  for  the  def(Mulant  tnat  the  latter  was 
not  present,  aiul  had  not  testilied  on  the  trial  of  his  mother, 
and  therefore  her  conviction  should  not  be  conclusive  of  her 
guilt  against  him. 

In  view  of  the  decisions  of  this  court  in  State  v.  Kcarley,  20 
Kan.,  87,  and  State  v.  BrhhjcH,  29  Kan.,  138,  nothing  further 
need  be  said  regarding  the  refusal  of  the  court  to  delino  the 
phrase  "  reasonable  doubt."  AVe  have  already  held  that  thei'e 
was  sufHcient  evidence  to  warrant  the  jury  in  iinding  Mary 
Isabel  Martin  guilty  of  the  nmrder  of  JNIrs.  Keiger  ^State  v. 
Martin,  ante,  781),  and  we  cannot,  upon  the  record,  say  that 
there  was  no  evidence  in  this  case  to  sustain  the  verdict  against 
the  defendant. 

The  judgment  of  the  district  court  must  be  affirmed. 

(All  the  justices  concurring.) 


533 


AMERICAN  CRIMINAL  REPORTS. 


Oliver  v.  The  State. 

(45  N.  J.,  46.) 

Rape:  Caitial  knmeledge  of  female  child  under  ten  years  —  Consent  no  de- 
fense —  Evidence  —  Instructions. 

1.  Consent  of  female  child  undeu  ten  years  no  defense. — Upon  trial 

of  an  indictment  for  abuse  and  carnal  knowledge  of  a  female  cliild 
under  the  age  of  ten  years,  it  is  not  error  to  refuse  to  charge  the  jury 
that,  in  order  to  convict  under  a  count  for  indt'cent  assault,  the  evidence 
must  satisfy  the  jury  that  the  accused  conunitted  the  alleged  indecent 
act  against  the  will  of  the  child. 

2.  There  may  he  submission  by  a  child  of  tender  years  without  legal  con- 

sent. 

8.  Testimony  of  witness  not  excluded  because  coxtuadicted  in  part.— 
It  is  not  error  to  refuse  to  exclude  the  whole  testimony  of  a  witness  I'r  ni 
the  case,  because  parts  of  his  evidence  are  contradicted  by  other  wit- 
nesses. 

4.  Charge  of  the  court  to  the  effect  that  the  accnscMl  was  to  be  considered 
innocent  until  proved  guilty,  and  that  if  there  was  reasonable  doul)t, 
and  the  disclosures  did  not  satisfy  the  jury  of  his  guilt,  they  should 
acquit  him,  is  sufluncnt. 

J.  IT.  Gd-iUfl  and  M.  R.  Soot/,  for  tlie  plaintiflf  in  error. 
C  E.  Ifcndrhihmn,  for  the  state. 

The  oDinion  of  the  court  was  dolivorod  by 

Parker,  J.  The  record  sliows  tliat  the  plaintiff  in  error  \v;is 
indicted  for  assault  and  carnal  knowledoe  of  a  fcmah^  cliild 
under  the  aiie  of  ten  years.  There  were  counts  for  abusiuii' 
and  knowino^  the  child  without  her  consent,  and  other  counts 
charoino;  such  abuse  and  knowledoe  with  her  consent.  TIk! 
la;  t  count  charged  an  indect^nt  assault.  There  was  a  general 
verdict  of  <^uilty  as  charj^ed. 

There  are  numerous  cxce})tions  on  which  error  has  been  as- 
signed, but  those  relied  upon  to  revei'se  the  judgment  relate  to 
the  charge  of  the  court  an<l  refusals  to  charge. 

Tiie  lir.st  three  requests  were  charged  in  a  modified  foi-ni. 
The  modifl(!ations  made  by  the  court  relate  to  the  degicM' 
of  penetratitm,  and  state  cori-ectly  the  I;  •  on  that  subject. 
liegina  •}).  JJp-'.s,  1  (\  tfc  K.,  .'>'.»,".;  Rnjlna  v.  JlmjIhK,  0  V.  <k  I*., 
752. 

The  fourth  projjosition  was  chargc^l  as  requested  by  counsel 
of  the  accused. 


OLIVER  V.  THE  STATE. 


533 


The  court  refused  to  charge  the  f/th  and  sixf/i  requests,  and 
in  so  doing  it  is  insisted  that  the  court  erred. 

By  the  Jifth  request  the  court  was  asked  to  charge  that,  in 
order  to  convict  under  tlie  count  for  assault,  the  evidence  must 
satisfy  the  jury  that  the  accused  conunitted  the  alleged  in- 
decent act  wjaind  the  lo'dl  of  the  child. 

This  the  court  refused  to  charge,  and  in  such  refusal  there 
was  no  error.  An  act  such  as  is  charged  in  that  count,  cotu- 
niitted  upon  a  child  of  such  tender  years,  is  criminal  whether 
Avith  or  witliout  her  consent.  Legally  she  had  no  will  to  resist 
or  consent. 

Tlu^i'e  may  be  actual  submission  of  a  child  with«)ut  consti- 
tuting legal  consent,     lughni  v.  Jhri/,  9  C.  (k  P.,  722. 

That  case  a})])lies  directly  to  the  (juestion  now  before  the 
court.  The  counsel  for  the  prisoner  in  that  case  contended 
that  the  count  being  for  assault,  consent  or  non-c(nisent  on  \)nvt 
of  the  girl,  although  she  was  of  tender  years,  was  material, 
iuid  that  if  she  olfered  no  resistance,  but  submitt(>d  quietly, 
it  nuist  be  taken  that  she  was  consenting  to  the  act,  aiul  that 
tiie  ]»ris()ncr  shouhl  be  accpiitted.  l>ut  the  court  refused  so  to 
charge,  and  said  tliat  the  nu're  submission  of  a  child  when  in 
the  power  of  a  sti'ong  man,  and  most  probably  acted  ajM)!!  by 
feai',  can  by  no  means  be  taken  to  be  such  consent  as  will 
justify  the  pi'isoner  in  ])oint  of  law. 

The  .s/'.i'/h  aiul  last  re(|uest  was,  in  substance,  that  tiie  court 
charged  tliat  the  ell'eet  of  certain  statements  of  two  of  (I(>fend- 
ant's  witut^sses,  whicli  had  been  contradicted  by  other  wit- 
nesses, should  discredit  their  testinutny  to  such  extent  as  to 
oblige  the  jury  to  disregard  not  only  their  statements  which 
had  been  contiadicted,  but  the  whole  evidence  of  those  wit- 
i\esses.  This  rwiuest  was  too  broad,  and  llu;  court  did  right  in 
not  charging  as  ret] nested. 

The  witnesses  reierred  to  were  exaniiiu'd  fully,  and  the  con- 
tradiction related  only  to  part  of  their  evidence.  They  were 
not  impeadu'd  by  proof  of  geiu'ial  had  character  for  veracity, 
but  by  showing  tliat  they  had  made  pi-eviously  some  state- 
nu'nts  on  a  material  point  in  direct  antagonism  with  what  they 
stated  on  the  trial.  Tortious  of  the  testimony  of  those  wit- 
nesses ju>t  contradicteil  were  unlavorable  to  the  accused.  One 
of  these  witnesses  was  a  physician,  who  saw  the  child  soon  after 


OO-i 


AMERICAN  CRIMINAL  REPORTS. 


the  crime  was  alleged  to  have  been  committed,  lie  gave  evi- 
dence on  the  question  of  penetration,  and  also  as  to  symptoms 
of  a  disease  which,  it  was  alleged,  the  child  was  afflicted  with 
soon  after  the  occurrence.  He  also  swore  that  defendant  was 
diseased.  These  portions  of  his  testimony  were  favorable  lo 
the  state,  and  the  state  had  the  right  to  have  such  evidence  re- 
main in  the  case. 

The  counsel  of  the  prisoner  also  excepted  to  the  charge  as 
delivered  on  the  question  of  reasonable  doubt.  On  this  sub- 
ject the  court  not  only  said  to  the  jury  that  the  defendan* 
should  have  the  benefit  of  anv  reasonable  doubt,  but  also  t(  'd 
them  what  such  benefit  was.  The  language  used  by  the  pro- 
siding  judge  was,  "  You  should  recognize  the  well-settled  jirin 
clple  of  law,  that  every  man  is  ijinocent  until  proved  guilty, 
and  give  him  the  benefit  of  the  I'casonablc  doubt.  Having 
done  this,  if  you  are  sati:;fied  of  his  guilt,  you  should  return 
your  verdict,  or,  if  the  disclosures  arc  not  sullicicnt  to  satisfy 
you,  you  should  acquit  him." 

The  judgment  is  affirmed. 


Alduicu  iri'  Ai..  V.  Tnio  Pkopi.e. 

(U)l  111.,  10.) 
Receivixo  S'nn.KN  Cioons:  ('(inccahnoitofsamc  —  Erklciicc. 

1.  Receivixo  stolen  ooods  and  conceaunu  saju^  for  gain,  etc.— Puooi 

Nr.CESSAUV. —  III  order  to  convict  uii<lcr  section  2oJof  thcC'iiniiiiiil  ('nil!', 
for  rccc'lvinp;  ami  aitiinf;  in  C()iic('iilin;j;  stolen  }.',ooil,s  for  gain,  or  to  pre- 
vont  the  owner  from  receivin,'^- tli<'s;inie,  etc.,  it  Ih  ossential,  first,  to  show 
that  the  proiu'i-ty  alle<^e(l  to  liavt^  heeii  rei'eived  or  concealed  was  in  fa(  (, 
stoliui;  secondly,  that  the  accused  received  the  goods  knowinj;  them  t" 
have  been  stolen,  guilty  knowledf;<^  hcin.n;  an  esi-cidial  ingredient  of  the 
crimt!;  ami  lastly,  that  the  .■iccusei',  for  his  own  gain,  or  to  i)revciit, 
the  owner  from  recovering  the  same,  honght,  received,  or  aiiled  in  con- 
cealing i\w  stolen  goods, 

2.  When  till*  owner  authorizes  ov  licenses  another  to  receiver  stolen  goods, 

and  such  other  ijor.son  receive!!  the  goods  from  the  thief  knowing  th;  ni 
to  have  been  stolen,  with  a  felonious  intent,  he  will  he  guilty  of  afelo:i> 
in  riH'eiviiig  th(^  ])ro|)erty,  notwilhstanding  the  license. 

3.  RECElVlNd  STOLEN  I'ltorKUTV  —  Ml'ST  BE  WITH  CHIMINAI.  INTENT.—  Wlnic 

a  defendant,  on  behalf  of  the  owner,  reicives  h(ol(>n  goods  from  the 
thiuf,  for  tlio  houcbt  purfioLio  of  rtstoriug  theui  to  the  owaer  without 


'M 


ALDRICH  V.  THE  PEOPLE. 


535 


fee  or  reward,  or  the  expectation  of  any  pecuniary  compensation,  and 
in  fact  imnioiliatcly  after  obtaining;  tlioir  possession  restores  all  lie  re- 
ceives to  the  owner,  and  is  not  acting  in  concert  or  connection  with  the 
yai-ty  steal  ing  to  make  a  profit  out  of  the  transaction,  he  will  not  be 
guilty,  under  the  btatute. 

Writ  of  Error  to  the  Criminal  Court  of  Cook  County;  the 
1  Ton.  Elliott  Anthony,  .Judge,  presiding. 

John  Lyle  Kiiuj^  for  the  plaintiff  in  error. 

Mr.  Luther  Laflln  Mills,  state's  attorney,  for  the  people. 

Mr.  Chief  Justice  Craig  delivered  the  opinion  of  tlie  court. 

This  was  an  indictment  in  tlie  criminal  court  of  Cook  county 
against  Charles  Aldi'icli  and  Emanuel  Isiuics.  for  larceny.  In 
two  of  the  counts  it  was  charged,  in  the  indictment,  that  for 
their  own  gain,  and  to  prevent  the  owners  from  again  ])ossess- 
ing  their  pro[)erty,  the  defendants  did  buy,  receive  and  aid  in 
concealing  tlie  goods  of  certain  named  persons,  lately  before 
feloniously  stolen,  the  defendants  well  knowing  they  were 
stolen.  Tlie  jury  before  whom  the  cause  was  tried  returned  a 
verdict  of  guilty  of  receiving  stolen  property,  and  found  the 
property  to  bo  of  the  value  of  $(5,000.  The  court  overruled  a 
motion  for  a  new  trial,  and  rendered  iiidgment  on  the  verdict, 
and  tlie  defendants  sued  out  this  wj'it  of  error.  In  order  to 
obtain  a  chnir  understanding  of  the  ipiestions  presented  by  the 
record,  a  brief  statement  of  the  facts  seems  necessary. 

On  Friday  night,  November  20,  1880,  four  persons,  ]\riko 
Bauer,  Nick  IJauer,  Herman  Schroeder  and  IMathew  Ash,  stole 
a  trunk  from  the  Clifton  House,  in  Chicago,  belonging  to  J.  11. 
Morrow,  which  contained  jewelry  belonging  to  Eaton  &  Faas, 
and  Ernest  Tlioma,  of  Xew  York,  of  the  value  of  from  $7,000 
to  $8,000.  l\[orrow  had  the  goods  for  sale  as  agent  of  the 
owners.  ( )n  th(>  night  the  trunk  was  stolen,  one  of  the  thieves, 
Mike  IJauer,  told  the  <lefendant  Isaacs,  who  was  a  pawnbroker 
in  Chicago,  that  ho  had  a  (juantity  of  jewelry  for  sale,  and 
offered  to  sell  to  the  defendant,  but  he  declined  to  buy.  leaner 
desired  {\w  dc^fendant  to  see  the  goods,  which  he  promised  to 
do  at  a  future  day.  On  the  following  Sunday,  Isaacs,  in  com- 
pany with  Bauer,  went  to  a  room  where  the  latter  had  the 
goods  concealed,  and  looked  them  over,  and  was  offered  the 


536 


AMERICAN  CRIMINAL  REPORTS. 


property  for  $000  or  8700.  Isaacs  declined  to  buy,  but  told 
him  not  to  bo  in  a  hurry,  he  would  talk  to  him  the  next  day- 
On  Satuixlav  ni^-ht  before  this  occurred,  defendant  Aldrich,  a 
policeman,  and  one  Levi,  were  at  Isaacs'  place,  and  the  robbery 
havin<^  been  mentioned,  Isaacs  ^ 'marked  tliat  he  could  luive 
had  the  ^-oods  for  a  small  sum  of  money.  After  ol)tainin^'  tliis 
information  from  Isaacs,  Aldrich  and  Levi  conceived  tlie 
sclieme  to  recover  the  pro])erty  and  return  it  to  tlie  owners 
throu;^h  Isaacs.  On  ^londay  a  meeting'  was  Iiad  between 
Aldrich  and  Morrow,  at  the  I'nion  National  IJank,  in  the  pres- 
(ince  of  Pinkei'ton,  where  Aldricli  was  cmpkn'ed  as  special 
[)oliceman,  wliich  resulted  in  an  arrangement  that  Aldricli 
should  obtain  the  goods  belonging  to  Tlioina  for  i^TOO,  or  less 
if  he  could,  without  disclosing  tlie  name  of  the  ])erson  with 
whonj  he  should  deal,  and  without  leuai'd  to  liimsell',  save  only 
the  reputation  which  he  anticipated  would  follow  the  transac- 
tion, as  a  detective  of  stolen  pro])erty. 

On  the  following  Wednesdiiy  Morrow  paid  over  to  Aldrich 
§700,  on  the  guaranty  of  th(>  vic<>-presi(lent  of  tli(^  Union  ,\;i. 
tional  I'ank  that  the  goods  or  money  should  !)(>  retui'ued.  On 
the  same  day  Aldrich  paid  ovei'  to  \a\\\  si;(M>  of  the  money,  to 
l)e  paid  to  the  party  who  had  the  goods,  through  Isaacs,  u  ho 
alone  knew  such  party. 

Out  of  the  money  thus  reciMved  l)y  Levi  he  paid  over  >>ir»0 
to  Isaacs.  Tln^  !i^+'>'*  Isaacs  paid  to  I'auer.  who  had  thc!  goods, 
as  he  testilied;  hut  IJauer  says  he  only  i-cccIvcmI  of  Isaacs  ."<:!( mi. 
However  that  may  l)e,  upon  tln^  i)ayment  ol'  the  money  1<» 
Bauer,  on  AVednesflay  evening,  he  took  the  goods,  and,  in  com- 
pany with  Isaacs,  carried  them  to  a  cigar  store  and  barlter 
shop  on  States  street.  Then  Isaacs  nolilied  Levi  wIkm'c  the 
goods  could  be  found,  and  he  notified  .Mdrich.  who  went  to 
the  place  designated,  found  the  goods,  and  within  ten  mimites 
cai'ried  them  in  unopened  packages.  j>recisely  as  he  had  fomid 
them,  to  the  Clifton  IIous(^  ami  delivered  them  to  Morrow. 

I5au(M^  i-epresented  to  Isaacs  that  the  packages  returned  eon 
lained  all  theg'oods  which  had  hcen  stolen;  those  helonging  tc 
Eatim  &  Faas,  and  also  those  belong-ing'  to  Thoma,  and  Isaacs 
and  Aldricih  both  understood  this  to  be  the  case;  hut,  upon  a 
subse(jucnt  examination,  it  is  claimed  there  was  a  shortage  of 
aomc  ^Ij^OO. 


ALDRICH  V.  THE  PEOPLE. 


537 


These  are,  in  brief,  the  substantial  facts,  as  we  understand 
the  testimony. 

In  the  argument  a  number  of  questions  have  been  presented 
in  regard  to  tlie  admission  and  excUision  of  evidence,  but  we 
have  concUidcd  to  base  our  decision  on  tlie  merits  of  tlie  case, 
and  hence  it  will  not  be  necessary  to  notice  these  (luestions. 

The  indictment  in  this  case  was  found,  and  tlie  conviction 
had,  under  section  2:59,  cha]>ter  38,  of  tlie  Criminal  Code,  lie- 
vised  Statutes  1874,  p.  388,  which  declares:  "Every  person 
who,  for  his  own  gain,  or  to  prevent  the  owner  from  again 
possessing  his  property,  shall  buy,  receive  or  aid  in  concealing 
stolen  goods,  or  anything  the  stealing  of  which  is  declared  to 
be  larceny,  or  property  o1)taine<l  by  rol)bery  or  burglary, 
knowing  the  same  to  have  been  so  obtained,  shall  be  imprisoned 
in  the  penitentiary,"  etc.  On  an  indictment  under  this  section 
of  the  statute  for  receiving  stolen  goods,  the  first  tiling  to  be 
proven  is,  tliat  tlie  profierty  alleged  to  have  been  received  Avas 
stolen.  In  this  case,  however,  tiiei-e  is  no  conti'oversy  over  that 
(juestion.  It  is  conceded  that  tlie  goods  in  question  were 
stolen.  Indeed,  several  of  the  thieves  who  stole  the  })roperty 
were  introduced  as  witnesses,  and  testilied  to  the  larceny  of 
the  goods.  After  the  larccMiy  has  been  [H'oveu  it  becomes 
necessary  to  establish  the  fact  that  those  accused  of  the  crime 
received  the  stolen  goods  knowing  them  to  have  been  stolen, 
(fuilty  knowledgi^  on  the  part  of  the  defendant  is  essential  to 
the  constitution  of  the  olfense.     Wharton,  vol.  '2.  sec.  iSS'.t. 

The  intent,  as  in  hirceny,  is  the  cliief  ingredient  of  the 
offense.  Tims,  wlieie  A.  aiitliori/.es  or  licenses  1».  to  receive 
property  lost  or  stolen,  and  iJ.  receives  the  prv)[)erty  from  the 
thief  knowing  it  to  be  stolen,  with  a  fe]oni«)ns  intent,  he  is 
guilty  of  a  f(>h)ny  in  receiving  the  jirojierty,  notwithstanding 
the  license.  Wharton,  sec.  181»1.  Under  our  statute  there  is 
another  essential  fact  t(j  be  proven  —  that  is.  that  i!ie  dcK'iid- 
ant,  for  iiis  own  gain,  or  to  prtnciit  the  owner  fioni  again  pos- 
sessing his  property,  bought.  receive(l  or  aided  in  coiU'(>aHng 
stoUai  <>'oods.  There  is  no  doubt.  IVomi  tJHM'viiUMU'e  in  tiiiscase. 
in  regard  to  tlie  fact  that  the  dffendants  knew  the  goods  were 
stol(Mi.  Theii-  knowledge  is  a  conceded  fact.  It  is  also  an  un- 
disputed fact  that  the  stolen  goods,  in  passing  from  the  custody 
of  the  thieves  to   Moi'row,  the  agent  of  the  owners,  passed 


■i'-      ';. 


688 


AMERICAN  CRIMINAL  REPORTS. 


through  the  hands,   first,  of  defendant  Isaacs,  and  second, 
through  tlio  hands  of  defendant  Aldrich. 

The  question  in  the  case  is  then  narrowed  down  to  this: 
Whether  defenchmts  received  the  goods  for  tlieir  own  gain  or 
to  prevent  the  owner  from  again  possessing  his  property.  Tliis, 
in  our  judgment,  is  the  turning  point  upon  wliich  the  decision 
of  the  case  must  hinge.  In  the  disposition  of  tlie  question 
we  will  consider  the  case,  first,  as  to  the  defendant  Aldrich, 
and  second,  jis  to  the  defendant  Isaacs,  as  the  facts  relating  to 
e;u;h  deiVndant  are  somewhat  different. 

It  is  not  claimed  that  Aldrich  undei'took  to  secure  the  return 
of  the  goods  for  any  fee  or  reward  whatever,  or  that  lie  ex- 
pected to  make  any  money  out  of  the  transaction.  On  the 
contrary,  it  was  proven  by  the  prosecution  that  all  he  wanted 
Avas  the  reputation  of  recovering  the  goods.  I'pon  this  point 
^Fori'ow  testified :  "  Prior  to  the  time  the  goods  were  returned 
Aldrich  said  he  didn't  exi)cct  to  make  a  cent  out  of  the  trans- 
action; said  this  on  Monday;  he  nevci"  asked  for  any  compen- 
sation, or  made  offer,  bargain  or  ])roposition  for  compensation; 
he  said  all  he  wauled  was  the  glory  of  beating  the  otlii^r  fel- 
lows in  getting  the  goods."  The  city  authorities  and  Pinker- 
ton  were  after  the  goods.  He  never  asked  a  dollar.  It  is  true 
ho  retained  in  his  jjossession  SlOOof  the  money  which  ^[orrow 
gave  to  him,  1)ut  this  was  not  kept  for  his  own  benejit,  but  for 
the  benelit  of  Morrow.  Upon  this  jjoint  t!ie  s;ime  witness  testi- 
fied ;  "On  Wedncsslav  niiilit  he  said  he  had  <>'ot  all  the  {"'oods, 
instead  of  a  ])art,  and  tliat  he  had  saved  me  sKlo."  How  could 
ho  save  for  JMorrow -^100  if  the  money  was  retained  for  his 
services?  This  could  not  b((  the  case,  as  Ik;  had  paid  over  to 
Levi  all  he  received  of  Morrow  (\\;cei)t  this  isloo. 

It  is  aj)parent,  fi-om  the  evidence,  thai  no  agr(»ement  was 
ever  made  under  whicii  Aldi-ieh  was  paid  anything  foi"  his 
services  —  that  he  expect(Ml  nothing  and  i'e('(Mve(l  nothing  for 
the  s(M'vices  he  r(Mid(n'ed  in  securing  the  I'eturu  of  the  goods. 
How  can  it  then  be  said  that  iu'  receivi'd  tlie  goods  for  his 
own  gain?  Xor  did  lu;  i'eceiv(^  the  goods  to  i)revent  the  owner 
from  again  possessing  his  proi^uM'ty.  but,  on  the  other  liami,  he 
received  tluMu  for  the  V(M'y  purpose  of  restoring  llieni  lo  tin 
ownci',  which  he  did  within  ten  luinutes  from  the  time  tlio\ 
carao  intL-  his  possession. 


ALDRICH  V.  THE  PEOPLE. 


539 


Wo  will  now  consider  the  testimony  as  to  the  dofcndant 
Isaacs.     lie  was  a  ])awni)i"()kcr,  and  on  the  ni^^lit  the  goods 
were  stolen  lie  was  approaelied  by  one  of  the  theivos,  and  re- 
quested to  buy  the  goods.     This  he  i-efused  to  do,  but,  having 
obtained  information  as  to  tlie  cust«}dy  of  the  goods,  he  under- 
took, afterwards,  to  assist  Aldrieh  in  the  consummation  of  his 
scheme  to  obtain  the  goods  and  restore  them  to  llie  owner. 
There  was  no  contnict  or  agreement  inider  wliicli   he  was  to 
receive  any  pay  for  what  he  miglit  do  in  tlie  ])!'emises.     All 
that  he  did  was  done  as  a  favor  to  lielp  Aldrieli,  wlio  wanted 
the  credit  of  getting  the  goods  returnc'l.     Levi,  who  iiekl  §000 
to  be  paid  for  the  return  of  the  goods,  luuuhHl  Isaacs  $450, 
and  retained  the  l»a1aneo  until  it  coukl  be  ascei'taimnl  that  all 
the  goods  weri!   returned.     Tliis  sum   Isaacs  test i lied  he  paid 
over  to  IJauer,  but  I'auer  sweai's  that  Isaacs  oidy  paid  him  S300, 
l)i'omising  to  ])ay  the  l)alance  tlie  next  day.    This  is  the  only 
evidence  contained  in  the  record  tending  to  show  money  m 
the  hands  of  Isaacs  as  compensation  for  what  he  did  in  the 
transaction.     ^^'(Mlo  not  regard  tlie  evidence  sutHcient.     Con- 
(teding  that  the  credibility  of  the  two  men  is  cMpial,  whicli  is 
iiuite  as  favorabk*  a  view  on  the  side  of  the  jirosecution  as 
they  could  aslc,  it  would   leave  the  matter  standing  one  oath 
a,gainst  another,  which,  under  the  circumstances  of  the  case, 
(jould  iu)t  be  regarded  as  establishing  the  fact  beyond  a  rea- 
sonable doubt. 

Again,  if  Isaacs  had  been  endeavoring  to  make  money  out 
of  the  transaction,  it  is  strange  he  did  not  avail  of  the  oppor- 
tunity to  buy  all  the  goods  for  the  S(>(IU  for  himself,  and  say 
nothing  to  tin'  detectives  in  regard  to  the  nialter. 

This  would  have  been  the  course  he  doubtless  would  have 
adopted  had  li<  undtM'takeii  to  get  the  gooils  for  his  own  gain. 
The  fact  that  he  did  not  take  this  eoui'se  is  a  circumstance 
tending  to  corroborate  his  evidence  that  all  he  did  was  without 
pa,y  or  reward.  If,  then,  Isaacs  received  no  compensation,  and 
laid  no  arrangement  undei'  which  he  was  to  bo  paid  for  what 
he  miglit  do,  we  p(>rceive  no  ground  upon  which  it  can  be  deter- 
mined that  he  receiv»>d  the  goods  tor  his  v)wn  gain,  ov  that  ho 
received  theii\  to  prevent  the  owner  iVom  again  possessing  his 
proptM'ty,  within  the  meaning  of  the  statute. 

It  may,  however,  be  said,  that  as  the  goods  passed  through 


AMERICAN  CRimNAL  REPORTS. 


■si* 

A 
iff 


M 


■  defendants'  hands  they  should  bo  held  liable  for  the  shortage 
of  §;1,J}00,  and  in  this  way  they  received  the  goods  for  their 
own  gain.  If  tliey  retained  the  goods  that  were  missing  there 
might  be  force  in  the  position,  but  from  the  evidence  that  was 
impossible.  Isaacs  only  saw  the  property  on  two  occasions, 
lirst  on  Sunday,  when  he  looked  it  over  in  tiio  ])resence  of 
Eauer,  who  docs  not  pretend  that  Isaacs  olfered  to  take  any 
part  of  the  goods;  again  on  Wednesday  evening,  Avhon  tlu^ 
goods  were  curried  by  liauer  from  Fourth  avenue,  in  ]iaclcages, 
to  the  cigar  store.  AVhile  Isaacs  was  in  company  with  IJauci', 
at  the  time,  it  docs  not  appear  that  he  in  any  manner  handled 
the  goods.  As  to  Aldrich,  his  oidy  posscssicm  of  the  property 
"was  during  the  ten  minutes  which  it  took  him  to  carry  the 
goods  from  the  cigar  store  to  tiie  hotel,  wlien  the  propei'ty  was 
in  ])ackag('s  and  unopened.  We  can  see  no  gi'oiind  upon  which 
it  can,  from  the  evidence,  be  claimed  that  either  of  the  de- 
fendants can  be  held  liable  for  the  shortage  in  the  goods.  The 
more  reasonable  view  is,  that  the  missing  articles  were  taken 
by  the  thieves  an<l  appropriated  to  their  own  use  while  they 
had  the  goods  in  i)()ssession. 

It  is,  however,  urged  that  tlie  fact  that  the  property  could 
have  bccMi  I'eturncd  soon  after  the  larceny  for  ^.")0(>,  and  the 
fact  tiiat  .Mdrich,  in  his  first  interview  with  Morrow,  in  sub 
stance  said  it  would  reijuirc  ^1,40()  to  obtain  the  property,  the 
long  p(>ndency  of  the  negotiations  as  to  the  amount  to  be  i)ai(l. 
and  the  fact  that  ^ritto  more  "'as  ]»aid  to  Aldrich  than  was 
demanded  by  the  thieves,  ai'e  facts  which  prov(!  motive  of 
gain.  As  we  undei'stand  the  evidence,  the  defendants  could 
not  at  any  tinu^  have  ol)tained  possession  of  the  pro|)erty  so  it 
coidd  be  returned  without  paying  the  thieves  tlu^  amount  of 
money  <lemanded  by  them.  The  defendants  cannot,  therefore, 
be  blamed  for  the  delay,  as  they  acted  as  s(»on  as  Moitow 
furnished  th(>  money  to  be  j)aid  to  the  thieves,  it  is  ti'ue, 
Ahlrich,  in  his  lirst  interview  with  Mt>i'row.  expivssed  the  opiii 
ion  that  !?1,40(>  would  be  ivipiired  to  obtain  the  i)i'operty,  au'l 
this  nuiy  be  regarded  as  a  circumstam*e  against  him;  but  his 
subsecpient  conduct,  agreeing  to  obtain  the  property  for  one- 
half  that  sum,  or  as  much  less  as  he  could,  clearly  repels  tlw 
inference  that  he  was  seeking  to  uv.ika  any  gain  out  of  the 
transaction.    It  has  been  suggested  that  Levi  was  a  myth  - 


ALDRICH  c.  THE  PEOPLE. 


541 


that  no  such  pei-son  ever  lived.  Tlio  fact  tliat  ho  was  never 
seen  or  heard  of  after  the  night  the  goods  wei'e  returned  looks 
somewhat  siis])icioiis,  but  we  must  bo  controlled  by  the  evi- 
dence i?i  the  recoi'd,  and  unless  Isaacs,  Aldrich,  and  also  the 
I'atlier  of  Aldrich,  are  guilty  of  Avilful  perjury,  theu  Levi  was 
no  myth,  but  was  in  Cliicago  at  tlie  time  of  this  occurrence, 
and  ])articii)ated  therein,  as  testilied  by  the  dofoiidants. 

We  have  given  the  evidence  in  the  record  a  carelul  consider- 
ation, and  the  only  conclusion  we  have  been  al)le  to  reach  is 
that  it  has  not  boon  establishe<l  tliat  the  defendants  were  re- 
ceivers of  the  goods  for  th(>ir  own  gain,  or  to  prevent  the 
owners  from  again  possessing  their  ])roperty.  On  the  other 
hand,  the  only  logical  conclusion  that  can  reasonably  bo 
reached  from  the  evidence  is  that  defendants  undei'took,  on 
l)ehalf  of  the  owners,  to  obtain  a  return  oF  llie  goods  without 
coinjuMisation  or  reward,  and  that  all  the  goods  which  came 
into  tluMr  possession  weiv  in  good  faith  returiunl  to  the  owners. 
If  it  had  been  proven  in  this  case  tliat  the  defendants  had 
entei'od  into  negotiations  with  Morrow  to  secure  a  retiu'n  of 
the  stolon  goods  in  ])ursuanc(^  of  a  ))iior  arrangement  or  under- 
standing with  the  persons  who  had  stolon*  the  property,  with 
the  intent  or  ])urposo  of  making  a,  profit  out  of  the  transaction, 
we  would  not  hesitate  to  hold  that  they  were  guilty,  under  the 
statute. 

A  i)arty  cannot  shield  himself  behind  a  supposed  agency, 
growing  out  of  an  agreement  made  with  the  owner  of  stolen 
goods  for  their  return,  whore  it  appears  ho  is  acting  in  con- 
jmiction  with  the  thieves  to  make  a  gain  or  ])ro(lt  out  of  the 
trausaction.  Hut  whore  the  defendants  are  not  actuated  by 
the  motive  of  gain,  ;ts  they  were  not  in  this  case,  and  do  not 
aid  in  socrc^ting  the  propoi-ty,  we  do  not  understand  that  a 
conviction  can  be  had. 

The  judgnent  will  be  reversed  and  the  cause  remanded. 

Judijinent  reversed. 

Note. —  It  is  absolutely  essential  to  a  conviction  for  having  received 
stolen  money  for  gain,  knowing  it  to  have  been  istolen,  that  the  prosecution 
should  prove,  beyond  a  reasonable  doubt,  that  a  larceny  of  the  money  had 
been  conunitted.  This  fact,  being  what  is  known  n.s  the  co/'jjk.s'  dclidi,  could 
not  be  established  alone  by  the  confession  of  the  accused  that  the  money 
foiuul  on  them  was  part  proceeds  of  u  robbery.  Williams  et  at.  v.  The. 
People,  101  in.,  832. 


542 


AJIERICAN  CRIMINAL  REPORTS. 


In  The  rcnple  v.  Hennessey,  15  \V(>nil.,  147,  tho  court,  in  Inyinp  it  down 
that  tlio  c-onfi'ssion.s  of  a  party  to  an  individual  niiri-ly,  uncorroborated  by 
circumstances,  and  without  proof  aliimdc  tliat  a  criin«>  Iina  been  coniniitted, 
will  not  Justify  a  conviction,  observeil:  "The  truth  is,  no  court  will  ever 
rely  upon  a  confession  nlone,  when  it  is  ajiparent  that  there  is  evidence 
aliiiiKle  to  [id\e  that  an  olTeiise  has  been  couuuitted,"  See,  also,  1  Grcenleaf, 
Ev.,  sec.  217. 

Gvilti/  liiioirlrdrfc  —  Ofhrr  oc/'*. —  To  show  guilty  knowledijjo,  other  in- 
stances of  receiviuf;;  may  be  jn-oved,  even  though  they  be  tho  subject  of 
other  indictments  antecedent  to  the  receiving  in  <iuestion.  Hex  v.  Davis,  0 
Car.  &  P..  177. 

If  the  aci'used  knows,  when  he  receives  g(M)(ls,  that  ho  receives  them 
from  a  jirofessional  thief,  who  has  made  him  a  receiver  of  tho  proceeds  of 
various  thefts  befoie,  it  adds  no  force  to  tlu^  evideiict?  that  the  thefts  were 
all  from  the  same  juirty,  or  that  the  stolen  goods  were  similar  in  character. 
State  V.  Wavd,  l!)  Coim.,  4'J9. 

But  in  order  to  jirove  the  w(V(i^cr  the  property  must  h.avc  been  received 
fronj  the  same  person  from  whom  the  goods  in  (juestion  were  received. 
Coleman  v.  The  I'copk,  C5  N.  J.,  81. 


M 


4m. 


Pj'orr.K  V.  O'Laucjiiux. 

(;j  Utah,  1.3:5.) 

Riot  :  Juror  —  ( 'haJIciuje  —  Wifnei^s, 

1.  Opinion  op  .irnoR  formed  from  hkaiuxg  rei'ort  of  cnnir:. —  A  juror 

who  has  formed  an  opinion  upon  hearing  an  undis]iut(nl  report  of  a 
crime,  but  the  opinion  vvas  such  a  onc^  as  would  be  changed  by  the  state- 
ment of  any  credible  jxtsou,  has  not  the  uncpialified  belief  and  con- 
viction that  would  dis<iualify  him  from  ac  ting  impartially  as  a  juror. 

2.  DKFF.NDANTS     TRIED    JOINTLY      ENTITLED     T()     I!IT    SINGI.K    CIIAI.I  ENOE.— 

Where  several  defendants  are  tried  jointly  for  a  crime,  haviuf^  waived 
their  right  to  separate  trials,  they  are  only  entitled  to  challenge  jointly, 
and  ma.v  have  the  same  number  of  challenges  a.s  if  it  were  a  single  de- 
fendant being  tried. 

3.  Where  the  court  orders  witnesses  to  be  excluded  from  the  court  room 

during  the  opening  statement  and  the  taking  of  testimony,  it  is  a  mat- 
ter of  discretion  with  tho  court  to  allow  ji  witness,  who  1  is  remained 
through  a  misun<lerKtanding  of  the  order,  to  testif}',  and  then  remain 
during  tho  rest  of  the  trial. 

4.  Acts  Y"i('"  w^i^TiTiTK  riot.— Where  two  or  more  persons,  acting  to- 

gether v.'ithout  authority  of  law,  use-  or  threaten  either  force  or  violence 
accompanieil  by  immediate  power  of  exeeiition,  and  thereby  disturb  the 
public  peace,  they  arc  guilty  of  riot.  Sutricient  force  is  used  to  make 
out  tho  charge  of  riot,  if  their  recpiests  or  orders  are  obeyed  through 
a  reasonalile  fear  of  injury  to  person  or  property. 
B.  Testimf)ny  of  a  general  feeling  of  alarm  and  dis(iuiet  is  properly  received 
to  show  that  the  defendants  disturbed  the  public  peace. 


PEOPLE  V.  O'LAUGIILIN. 


543 


Arthur  Droum,  for  appellants. 

Philij)  T.  Van.  Zile,  iJnited  States  attorney,  Zrm  Snow, 
assistant  United  States  attorney,  and  Presley  Denny,  for  re- 
spondent. 

Twiss,  J.    The  indictment  in  this  case  charges  the  defendants, 
and  divers  other  persons  whose  names  arc  unknown  to  the 
grand  jurors,  to  the  number  of  about  two  hundred  ai\d  lifty, 
with  the  crime  of  riot,  ow  the  1st  day  of  February,  iSSl.at  the 
county  of  AVashington,  in  tlie  territory  of  Utah;   tiiat  by  the 
use  of  force  and  vii^lence,  and  by  threats  to  then  and  there 
use  force  and  violenci;,  accompanied  l>y  the  immediate  power 
of  execution,  and  acting  together  without  autliority  of  law, 
did  then  and  there  feloniously  disturlj  the  public  ])eace,    .     .     . 
and  did  taia>  unlawful  and  forcible  ])ussession  uf  the  jiroperty 
of  the  Stormout   Mining  Company,     .     ,     .     and  did  by  the 
use  of  force  and  violence,  and  threats  to  use  force  and  violence, 
accompanied  by   the  immediate  power   of  execution,  unlaw- 
fully, forcibly  a)ul  feloniously  drive  away  from  the  possession 
of  said  property,  to  wit,  the  J>uckeye  and  Savage  mines,  one 
W.  «T.  Allen,  and  other  em))loyees  of  said  coni])any,  having 
charge  and  control  of  said  property  and  mines  and  engaged 
at  work  thereon,  and  did  feloui*nisly  ami  unlawfully,  by  the 
use  of  force  and  violence  as  aforesaid,  compel  and  force  said 
Allen  and  said  employees  to  stop  and  tpiit  woi'k  thereon,  and 
leave  the  same,  and  then  and  there  took  forcil>lc  possession  of 
the  same,  to  the  gi'cat  danuige  of  said  company,  and  to  the 
terror  and  disturbance  of  said  employees,  and  of  the  public 
])eace,  conti'ary  to  the  form  of  the  statutes  of  Utah  territory 
in  such  case  nuule   and  provided,  and  against  the  peace  and 
dignity  of   the  ])eople   aforesaid.     Each  of   the  defendants 
l)leaded  ''  not  (jnUtyT     No  one  of  the  dcil'endanls  requiring  a 
separate   trial,  they  v,(M'e  jointly  tried,  and  the  jury  found  a 
verdict  of  guilty  as  to  all  of  them.     A  motion  for  a  new  trial 
was  overruled  and  the  case  was  ai)peale(l  to  this  court. 

The  error  fii'st  alleged  is  the  overruling  of  the  challenge, 
on  the  i)art  of  the  defendants,  ol"  John  kowder,  one  of  the 
jurors,  who  upon  his  t-oh-  dire  said  he  had  heard  a  report  of 
the  facts  of  the  case,  from  which  he  had  formed  an  opinion, 
which  he  believed  to  be  true,  but  he  did  not  know  that  he  had 


^, 


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AMERICAN  CRIMINAL  REPORTS. 


ever  expressed  it;  that  it  would  take  evidence  to  overcome  such 
belief.  "  I  believed  it  like  other  reports  I  hear," —  that  it  was 
a  conditional  and  not  an  unconditional  opinion.  The  condition 
was  as  to  the  trutli  of  the  storv  that  he  had  hcjird;  it  was  un- 
conditional  if  the  report  was  true.  "When  I  licai'd  tlie  story 
I  believed  there  was  something  in  it,  of  course;"  and  the  con- 
ditions about  it  were,  "  in  case  the  transaction  did  i-eally  take 
place,"  that  he  would  recpiro  proof  in  the  case  l)cf()rc  he  would 
be  willing  to  act ;  that  he  had  no  opiniori,  l»ias  or  prejudice, 
or  belief,  as  to  the  guilt  or  innocence  of  either  of  the  defend- 
ants, that  would  prevent  liim  from  acting  impartially  as  a 
juryman.  Tlie  cliallcnge  was  made  under  tlie  statutory  pro- 
vision disqualifying  a  juror  who  luis  ''  foj-med  or  expressed  an 
unqualified  opinion  or  belief  that  tlie  ])risoner  is  guilty  or  not 
guilt}'  of  the  oifensc  charged."  AVe  are  of  tlie  opinion  that 
there  was  no  error  in  ovcrrulino-  the  challenge.  Tlie  condition 
of  this  juror's  mind  was  such  as  would  usually  or  naturally  be 
formed  by  any  person  upon  hearing  a  report  of  an  alleged 
commission  of  crime;  ho  had  heard  a  story;  he  believed  it.  He 
says:  "I  lieiie^^Ml  there  was  something  in  it,  of  course;  no- 
body disputed  it.  1  bolievc<l  it  like  other  reports  I  hear."  It  is 
obvious,  that  this  opinion  or  belief  was  liable  to  be  changed  by 
the  stf.tements  of  the  next  pereon  lie  might  meet.  This  is  not 
a  con  v'iction  of  the  mind,  a  fixed  conclusion,  "  an  unqualilicd 
opinion  or  belief."  Imiu'cssions,  or  qualified  or  conditional 
opinions,  formed  upon  the  mere  hearing  of  a  report,  which,  in 
the  mind  of  an  honest  man.  capable  of  acting  as  a  jnror,  easily 
yield  to  the  testimony  of  witnesses  under  the  sanction  of  an 
oath,  having  personal  knowledge  of  the  facts,  constitute  no 
objection  to  a  juror;  but  an  unqualilicd  o])inion  or  belief 
which  clo.ses  the  mind  against  the  testimony  presented  in  oj)- 
position  to  it,  resists  its  force,  and  perverts  the  ju<l^ment,  does 
constitute  a  good  and  valid  objection.  An  unqnalided  opinion 
or  belief  is  fixed  and  certain,  and  is  incompatible  with  reasonable 
doubt  and  uncertainty,  and  is  not  dependent  upon  the  existence 
or  non-existence  of  any  extrinsic  fact.  The  defen<lants  were 
entitled  to  a  trial  b}'  an  impartial  jur3\  This  provision  of  our 
statute  is  a  simplification  of  the  common  law,  and  the  opinions 
of  the  state  courts  where  no  statute  exists,  or  where  the  same  or 
similar  statutes  are  in  force,  are  authority  with  us  in  applying 


PEOPLE  r.  O'LAUGHLIN. 


545 


the  facts  of  this  case  to  the  law,  and  deducing  conclusions.  Tlie 
question  at  issue  is,  do  the  statements  of  the  juror  upon  his 
voir  dire  show  him  to  have  had  at  the  time  an  unqualified 
opinion  or  belief  as  to  the  guilt  or  innocence  of  the  defendant  ? 
In  Com.  V.  W-jhster,  5  Cush.,  297,  Chief  Justice  Shaw  said: 
*'  The  opinion  or  judgment  must  be  something  more  than  a 
vague  impression  formed  from  casual  conversations  with  others, 
or  from  reading  abbreviated  newspaper  reports.  It  must  be 
such  an  opinion  upon  the  merits  of  the  question  as  would  be 
likely  to  bias  or  prevent  a  candid  judgment  from  a  full  hear- 
ing of  the  evidence."  This  is  clearl}'^  the  law.  State  v.  Willson, 
38  Conn,,  120;  Curley  v.  Com,,  84  Pa.  St.,  151;  StiU(j>  v.  Com., 
74  Pa.  St.,  458;  Peo2)le  v.  BeynoMs,  16  Cal,  128;  Gardne>^  v. 
People,  3  S'  im.,  S3.  In  closely  balanced  cases,  the  appearance 
of  the  juror,  the  mannei*  in  which  he  is  examined  by  the 
counsel,  and  its  effect  upon  him,  sometimes  justly  have  great 
weight  with  the  trial  judge.  In  view  of  this,  the  court,  in 
Ortwein  v.  Com.,  76  Pa.  St.,  414,  said :  "  Much  Aveight,  there- 
fore, is  to  be  given  to  the  judgment  of  the  court  below,  in 
whose  presenco  the  juror  appears,  and  by  whom  his  manner 
and  conduct,  as  well  as  his  language,  are'  scrutinized." 

The  defendant  Murphy  for  himself  alone,  and  not  for  him- 
self and  the  other  defendants,  peremptorily  challenged  the 
juror  Pairg,  which  challenge  was  objected  to  by  the  prosecu- 
tion, and  the  objection  sustained  by  the  court.  In  support  of 
this  challenge  it  was  claimed  under  the  act  of  congress,  June 
23,  1874  (known  as  the  Poland  bill),  providing  that  "each 
party,  whether  in  civil  or  criminal  cases,  shall  be  allowed  three 
peremptory  challenges,  except  in  capital  cases,  where  the 
prosecution  and  defense  shall  each  be  allowed  fifteen  chal- 
lenges," that  each  individual  defendant  had  the  right  to  three 
peremptory  challenges,  and  in  support  of  this  ^laim  the  coun- 
sel urges  that  in  criminal  cases  eacli  defendant  must  plead  for 
himself  in  person ;  each  makes  a  separate  issue  with  the  people 
on  the  question  of  his  guilt.  If  convicted,  each  must  suffer 
punishment  for  himself,  or  each  may  be  pardoned  on  his  own 
merits.  One  can  appeal  without  affecting  another.  In  all 
this,  it  is  claimed,  there  is  a  distinction  between  criminal  and 
civil  cases.  In  a  civil  case  one  judgment  only  is  recorded ;  one 
satisfaction  pays  for  all ;  and  therefore,  in  a  criminal  case,  tho 
VOL.IV  — 85 


5iG 


AMERICAN  CRIMINAL  REPORTS. 


•Is , 


trial  is  necessarily  separate,  to  a  certain  extent ;  in  other  words, 
the  word  "  party,"  as  used  in  the  statute,  means  each  individual 
defendant.  This  reasoning,  although  plausible  and  ingenious, 
is  not  good.  If  it  is,  these  thirteen  defendants  had  the  right  to 
make  in  the  aggregate  thirty-nine  peremptory  challenges.  The 
vords  "each  party  "  seem  to  have  the  same  force  in  the  first 
clause  of  the  provision  above  quoted  as  the  words  "  prosecu- 
tion and  defense  "  have  in  the  last  clause.  Each  of  these  ex- 
pressions are  s\'nonymous  with  either  party  to  the  action, —  the 
plaintiff  and  defendant, —  regardless  as  to  whether  one  or 
more  than  one  person  is  included  as  plaintiff  or  defendant. 
The  word  "  party  "  has  its  legal  and  technical  import  and  sig- 
nification, Avhich  is  to  be  given  to  it  at  all  times,  except  when 
by  its  use  it  is  clearly  intended  that  some  other  meaning  or  in- 
tent is  given  to  it.  State  v.  Heed,  47  N.  II.,  4<)(>.  Bouvior  says : 
"  A  party  in  law  may  be  said  to  be  those  united  in  interest  in 
the  performance  of  an  act ;  it  may  then  be  composed  of  one 
or  more  persons.  .  .  ."  In  /Sloiie  v.  Segur,  11  Allen,  5GS, 
the  court  says :  "It  imports  the  person  or  persons  in  whom 
a  joint  legal  right,  interest  or  title  is  vested,  or  against  wliom 
a  joint  liability  exists,  and  is  properly  applio'l  to  one  person  or 
many  persons,  according  to  the  subject-matter  of  tiie  eontruct 
or  cause  of  action,  and  relates  to  or  embraces  a  sole  or  joint 
interest  or  title  or  liability." 

With  this  definition,  accepted  and  announced  by  high  legal 
authority  in  both  civil  and  criminal  cases  as  the  correct  import 
of  the  word,  it  is  not  at  all  probable  that,  if  the  use  or  ftirco 
intended  to  bo  given  to  it  in  the  statute  had  been  such  as  is 
claimed  by  appellants,  such  intention  would  not  have  been 
expressed  in  unmistakable  language,  and  such  an  important 
matter  not  left  open  to  construction,  with  the  ordinary  legal 
and  technical  sense  of  the  word  opposed  to  such  intended  use. 
If  our  national  legislature  intended  that  the  words  "each 
party,"  in  the  provision  in  question,  should  mean  one  thing  in 
a  civil  action  and  another  and  quite  different  thing  in  a  crim- 
inal action,  the  language  used  is.  an  instance  of  negligent  and 
bungling  legislation  never  before  equaietl,  we  believe,  in  any 
act  passed  by  that  body.  But  such  was  not  the  intent,  and 
the  construction  claimed  by  a[)j)ellants  is  an  instance  of  ex- 
treme forced  construction  inconsistent  with  the  letter  and 


PEOPLE  V.  O'LAUGHLIN, 


'cjich 


spirit  of  the  statute,  and  the  intention  of  its  makers.  The 
right  of  peremptory  challenge  is  sanctioned  by  the  statute,  and 
the  defendants  were  entitled  to  the  full  benefit  of  it,  but  no 
greater  than  the  legal  signification  of  the  language  used  gives 
to  them.  By  this  claim  of  the  appellants  we  are  asked  in 
effect  to  interpolate  in  the  statute  an  exception  containing  a 
provision  that  the  word  "party"  in  crimti.rl  cases  means  each 
individual  defendant,  whether  one  or  7»i(  re.  This  we  cannot 
do.  We  have  no  pov.^er  to  insert  qualifications,  engraft  Gxce[>- 
tions  or  make  modifications  with  the  intenvion  of  creatinff  a 
provision  not  expressed  in  the  statute,  Sedg.  St.  &  Const.  Law, 
320.  By  the  statute  riot  is  made  a  felony,  and  section  202  of 
the  criminal  procedure  act  give^  to  any  defendant  jointly  in- 
dicted with  another  or  others,  for  a  felony,  the  right  to  a 
separate  trial,  if  he  requires  it.  All  the  defendants  having 
waived  this  privilege  and  declared  their  election  to  bo  tried 
jointly,  their  defense  was  joint  and  not  several,  and  no  one  of 
them  had  authority  to  control  the  conduct  of  the  defense. 
Their  challenges  should  have  been  joint,  not  several.  People  v. 
JlcCdller,  8  Cal.,  303;  People  v.  lluujer,  1  Parker,  Crim.  II., 
505. 

The  defendant  Enright  ])ercmpt()rily  challeged  the  jni'or 
Sander.  This  challenge  was  nuide  under  the  provision  of  sec- 
tion 238  of  the  crimiiuil  procedure  act  of  1878,  which,  by  its 
terms,  purports  to  give  the  defendant  in  a  case  like  this 
five  peremptory  challenges.  The  defendants  having  jointly 
availed  themselves  of  the  provisions  of  the  act  of  congress 
fixing  the  number  of  peremptory  challenges  at  three,  could  not 
be  allowed  to  make  individual  peremptory  challenges  under  the 
statute  of  the  territory.  The  challenge  was  properly  over- 
rubd. 

li  l)on  the  request  of  the  counsel  for  the  defendants,  with  the 
assent  of  the  counsel  for  the  people,  the  court  ordered  that  all 
witnesses  should  be  excluded  from  the  court  room  during  the 
opening  statement  of  counsel  for  the  prosecution  and  the  ex- 
amination of  witnesses.  After  the  opening  statement  on  the 
part  of  prosecution  had  been  ma<le,  W.  I.  Allen  was  called  as 
a  witness  by  the  prosecution.  The  defendants'  counsel  objected 
to  his  being  sworn,  because  he  had  remained  in  the  court  room 
during  the  opening  statement  of  the  counsel  for  the  people,  in 


^■^  -, 


648 


Ai'JERICAN  CRIMINAL  REPORTS. 


violation  of  the  order  of  the  court.  The  counsel  for  the  people 
and  the  witness  Allen  stated  that  they  did  not  understand  that 
the  order  of  the  court  applied  to  the  exclusion  of  witnesses 
during  the  opening  statement  for  the  people,  but  only  while 
evidence  was  being  offered  and  received.  Allen  said  he  did 
not  intentionally  violate  the  order  of  the  court;  that  if  he  had 
undei*stood  the  order  as  applying  to  the  opening  statement  of 
the  prosecution  he  would  not  have  been  present.  The  counsel 
for  the  people  then  asked  the  court  to  so  modify  the  order  as 
to  allow  the  witness  to  testify,  and  to  remain  in  the  court  rooiii 
during  all  the  trial,  as  he  was  necessary  to  them  in  aid  of  the 
prosecution,  Avhich  request  was  granted.  The  Avitness  Allen 
testiHed,  and  remained  in  the  court  room  during  the  trial.  This 
ruling  of  the  court  is  assigned  as  error.  We  are  of  the  opinion 
that  there  was  no  error  in  this  ruling  permitting  the  witness  to 
testify,  and  to  remain  in  the  court  room  during  the  trial.  As 
he  did  not  undei*stand  the  order  of  the  court  to  apply  to  the 
opening  statement  of  the  counsel  for  the  people,  he  was  not  in 
intentional  contempt.  The  modification  of  the  order  was  a 
matter  of  discretion,  as  was  also  the  making  of  it  at  first. 
Allowing  the  witness  to  testify  and  to  afterwards  remain  in 
the  court  room  Avas  a  matter  of  discretion  and  not  error. 
1  Greenl.  Ev.,  §  432,  and  notes;  People  v.  Gamctt,  20  Cal.,  021). 
Although  the  appellants  have  placed  on  record  forty -one 
assignments  of  error,  the  brief  of  c^l.  nsel  contains  but  six 
])oints  or  divisions  of  argument,  and  no  allusion  is  made  to  the 
greater  part  of  the  assignments.  The  fn*st  three  points  have 
been  considered  and  decided.  The  fourth,  fifth  and  sixth,  in 
which  are  grouped  such  of  the  errors  assigned  as  are  undis- 
posed of,  and  relied  upon  in  argument,  remain  to  bo  considered, 
an  intelligent  understanding  of  which  necessitates  a  cognizance 
of  the  following  portion  of  the  record:  "The  evidence  of  the 
prosecution  tended  to  show,  among  other  things,  that  on  the 
morning  of  the  1st  of  February,  18S1,  the  Stormout  ^Mining 
Company,  mentioned  in  the  indictment,  by  its  manager  and 
olficei's  issued  an  order  reducing  the  wages  of  the  miners  work- 
ing for  it  from  $4  per  day  to  $3.50  per  day,  in  all  its  works 
excei)t  at  the  Savage  shaft,  where  it  was  announced  the  old 
rate  of  Avages,  to  Avit,  $4  per  day,  would  be  contiimed,  which 
reduction  came  to  the  knowledge  of  an  organization  then  ex- 


PEOPLE  V.  O'LAUGHLIN. 


549 


isting  in  Silver  Reef  known  as  tlio  *  Miners'  Union.'  Thereupon 
the  defendants  and  others  comprising  tliis  union  met  together, 
to  tlie  number  of  about  one  Imndred  and  fifty,  in  Miners'  Union 
Hall,  in  Silver  Reef,  in  Washington  county,  Utah,  at  which 
meeting  the  defendant  O'Laughlin,  president  of  said  union, 
presided;  that  after  discussion  it  v/as  unanimously  voted, 
among  other  things,  that  the  miners'  union  and  all  its  mem- 
bers would  reject  and  resist  such  reduction,  and  would,  as  a 
miners'  union,  and  in  a  body,  order  the  works  of  said  Stormout 
Company  to  cease  and  shut  down,  and  that  if  they,  the  said 
company,  did  not  shut  down,  that  they,  the  union  and  its  mem- 
bers, would  shut  down  the  Savage  works  for  them ;  that  in 
pursuance  of  said  voting  said  meeting  immediately  adjourned 
and  organized  in  the  streets  of  the  village  of  Silver  Reef,  and 
nuirclicd  in  a  column  of  twos  to  the  Barbee  &  Walker  mine, 
through  the  st'-octs,  and  there  ordered  out  all  the  miners  there 
working,  and  Avho  were  members  of  the  union,  who  joined  the 
])r()cession,  and  from  there  back  through  tiio  village  to  the 
Tecumseh  mine,  in  lower  Silver  Reef,  and  there  ordered  out  all 
union  men  to  join  the  procession,  and  from  there,  having  col- 
lected three  hundred  and  four  miners,  among  whom  were  all 
those  defendants,  nuirched  in  a  body,  in  a  colunm  of  twos, — 
the  president,  O'Laughlin,  riding  horseback  in  the  lead  or  in 
command;  the  defendant  Hanley  carrying  the  United  States 
Hag, —  to  the  Savage  shaft,  and  surrounded  the  shaft  building, 
and  the  president  thereupon  selected  a  committee  of  ten  fi'om 
said  miners,  among  whom  were  the  defendants  O'Laughlin  and 
Deo,  ah'a.'i  Chatham,  which  committee  proceeded  inside,  and, 
in  presence  of  the  miners  outside,  ordered  the  fires  of  the 
engines  to  be  drawn,  and  the  works  to  close  down  and  cease, 
which  oi'ders  were  obcn'cd.  The  works  Avere  dosed  down,  and 
the  shaft  began  to  fill  with  water,  Avhile  the  enij)loyees  of  said 
comj)any  were  ordere('  from  the  building,  the  committee  re- 
maining in  possession  of  the  property;  the  defendant  Chatham 
remarking,  in  the  presence  of  the  committee,  to  the  employees, 
*  Vou  nuiy  go  now,  right  off;  we  have  possession.'  " 

The  defendant  O'Laughlin,  while  a  witness  on  the  stand, 
among  other  things,  testified  that  the  union  had  power  tocariy 
out  its  orders.  The  witness  Fleming,  among  other  things, 
testified  he  Avas  in  the  em;)loy  of  the  Stormout  Company  at 


550 


AMERICAN  CRIMINAL  REPORTS. 


the  Savage  shaft  when  the  miners'  union  came  there ;  so,  also, 
■vvas  David  McKelvey,  the  engineer,  in  charge.  The  ordera 
given  by  defendant  O'Laughlin  were :  "You  are  to  cease  all 
Avork  in  the  Savage  shaft  and  draw  the  fii'e,  and  not  start  up 
until  ordered  by  the  union."  I  asked  to  go  into  the  mine  and 
])ut  out  the  light,  and  after  consultation  one  of  the  committee 
told  me  no  one  would  be  allowed  in  the  mine,  and  ordered 
McKelvey  not  to  move  his  engine.  AVhen  the  orders  came  to 
cease  work  McKelve}*  replied :  "  All  right ;  I  know  what  that 
means ;  I  have  been  there  before ;"  or  something  to  that  effect. 

The  defense  claims  that,  "  to  constitute  riot,  the  public  peace 
must  be  disturbed.  Disturbing  the  public  peace  means  actual 
physical  violence.  The  public  peace  cannot  be  disturbed  by  an 
orderly,  quiet  meeting,  by  the  procession  of  miners  walking  by 
twos  and  making  a  gentlemanly  request  of  an  engineer.  Even 
if  the  acts  complained  of  Avere  unlawful  and  were  trespass, 
they  could  not  constitute  riot  unless  done  in  a  tumultuous  man- 
ner calculated  to  disturb  the  public  peace." 

Let  us  examine  this  position  in  the  light  of  the  statute  of  the 
territory  and  other  recognized  authorities.  In  Co)ii.  r.  Ihin- 
lids,  10  Mass.,  518,  the  court  says:  "  To  disturl)  another  in  the 
enjoyment  of  a  lawful  right  is  a  trespass,  and  if  it  is  done  by 
members  unlawfully  combined  the  same  act  is  a  riot."  JJisli. 
Crim.  Law,  §  11-13,  defines  riot  as  follows:  "A  riot  is  sucli 
disorderly  conduct,  in  three  or  more  assembled  })crsons  uctuully 
accomplishing  some  object,  as  is  calculated  to  terrify  others." 
This  learned  author,  in  quoting  Lord  Coke's  definition  of  riot, 


says : 


Riot  in  the  common  law  siunifieth  when  thi'ce  or  more 


do  any  unlawful  act;  as,  to  beat  any  man,  or  hunt  him  in  his 
park,  chase  or  warren,  or  to  enter  or  take  possession  of  another 
mans  land,  or  to  cut  or  destroy  Irs  corn,  grass  or  other  profit," 
etc.  In  section  1147  Mr.  Bishop  says:  ''  The  princijial  point  to 
be  here  considered  is  that  the  act  must  be  one  calculated  to 
create  apprehension  of  danger  in  the  minds  of  pei-sons  otiicr 
than  the  rioters."  And  again,  in  section  1148,  the  same  author 
says:  "The  ingredient  of  terror  excited,  necessary  in  a  riot, 
does  not  require  that  more  jwrsons  than  one  be  alarmed." 

The  court  below  instructed  the  jury  as  to  the  definition  of 
riot,  and  the  force  necessary  under  the  statute  to  make  out  tlio 
element  of  force  in  case  of  riot,  as  follows;     "Kiot,  by  the 


M 


PEOPLE  V.  O'LAUGHLIN. 


551 


sOj  also, 

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start  up 
nine  and 
Humittee 

ordered 
i  canio  to 
hat  tliat 
at  effect. 
)lic  peace 
ns  actual 
)cd  by  an 
liking  i)y 
M".  Even 
trespass, 

ous  llUVIl- 

ito  of  tlio 
.  r.  It  II II- 
ler  in  the 
done  l)y 
."  IJisli. 
t  is  such 
i  actually 
'  others.'' 
II  of  riot, 
}  or  more 
ini  in  liis 
f  anotlicr 
r  prolit," 

1  point  to 
idated  to 
>ns  other 
10  author 
n  a  riot, 
led." 
nition  of 
e  out  tlio 
t,  by  the 


statute  of  this  territory,  is  defined  to  be  any  use  of  force  or 
violence  disturbing  the  public  peace,  or  any  threat  to  use  such 
force  and  violence,  if  accompanied  by  immediate  power  of  exe- 
cution, by  two  or  more  persons  acting  together  and  without 
authority  of  law."    Comp.  Laws,  p.  614,  §  SOo-l.    From  this 
definition  we  can  determine  Avhat  it  is  necessary  to  prove  in 
order  to  make  out  a  case  of  riot :    (1)  A  riot  cannot  be  com- 
mitted by  one  person  alone.    The  statute  provides  that  there 
must  be  two  or  more  pei-sons.    Therefore,  in  order  to  make  out 
a  case,  it  is  incumbent  upon  the  prosecution  to  prove  beyond  a 
reasonable  doubt  that  there  were  two  or  more  of  the  defend- 
ants engaged  in  what  they  allege  was  the  riot.    (2)  That  two 
or  more  persons  acted  without  the  authority  of  law,  and  that 
they  so  acted  together.    (3)  That  the  two  or  more  persons  so 
acting  without  authority  of  law  used  or  threatened  to  use 
either  force  or  violence,  either  one  or  the  other.    (4)  That  the 
two  or  more  persons  so  acting  together  without  authority  of 
law,  and  using  or  threatening  to  use  force  or  violence,  were 
accom[)anied  with  —  liad  present  with  —  them  the  immediate 
power  of  executing  their  purpose.    (5)  That  two  or  more  per- 
sons so  acting  together  without  authority  of  law,  and  using 
force  or  violence,  or  threatening  to  use  force  or  violence,  ac- 
companied by  immediate  power  of  execution,  disturbed  the 
public  peace."    One  of  the  elements  of  riot  as  defined  by  our 
statute  is  the  use  of  force  or  violence,  or  threatening  to  use 
force  or  violence,  if  such  threatening  is  accompanied  by  imme- 
diate power  of  execution.    It  was  not  necessary,  in  order  to 
use  the  force  meant  by  the  statute,  that  the  defendants  and 
those  accomi)anyjng  them  should  have  been  armed  with  guns, 
pistols  or  clul>s,  or  any  kind  of  weapons.    The  facts,  if  you 
find  such  to  be  the  facts,  that  they,  accompanied  by  a  large 
body  of  men,  marched  in  a  procession,  under  the  command  or 
direction  of  these  persons,  to  the  Savage  mine  and  hoisting 
works,  and  there  were  halted  by  their  commanding  officers,  who 
selected  from  among  them  a  committee  who  ordered  or  de- 
manded, or  stated  the  demand  of  this  body  of  men  to  the  per- 
sons in  charge  of  the  works,  namely,  that  they  must  cease 
working,  or  that  in  substance,  and  that  this  large  body  of  men 
remaining  outside,  near  to  and  in  view  of  the  persons  employed 
by  the  Stormout  Company,  and  in  charge  of  said  works,—  these 


im 


AMERICAN  CRIMINAL  REPORTS. 


facts,  if  you  find  them  to  exist,  and  find  from  thorn,  and  all 
the  circumstances  in  evidence  in  the  case,  that  the  officers  and 
men  having  in  charge  said  works  and  property  of  said  com- 
pany feared  or  believed  that  bodily  hai'm  to  thenisolves,  or 
sevei'e  injury  or  damage  to  the  said  works  or  property  in  tlieir 
charge,  would  result  from  a  refusal  to  comply  with  the  com- 
mand or  request,  and  that  the  circumstances  in  which  suclj 
officers  and  men  in  charge  of  such  works  or  property  were 
placed  were  such  as  would  in  your  opinion  justify  such  belief 
in  the  minds  of  persons  possessed  of  ordinary  lirmncss  and  rea- 
son, are  a  sufficient  use  of  force  to  make  out,  so  far  as  the  ele- 
ment of  force  is  necessary,  a  charge  of  riot." 

In  regard  to  what  constituted  a  disturbance  of  the  public- 
peace,  within  the  intent  of  the  statute,  the  court  instructed  the 
jury  in  substance  as  follows:  "  If  the  defendants,  with  others, 
met  in  Miners'  Union  Hall  on  the  1st  day  of  February,  18S1. 
and  resolved  to  march  in  a  body  through  the  town  of  Silver 
Reef,  and  to  close  down  the  works  and  mining  machinery  and 
property  of  the  Stormout  Company,  and  that  they  did  so 
march,  and  by  the  use  of  such  force  as  I  have  before  metitioned 
did  order  or  direct  to  be  closed  down  tlio  said  works,  and  ditl 
hinder,  obstruct  and  prevent,  without  authority  of  law,  the 
said  Stormout  Company  from  operating  the  Savage  shaft,  and 
the  hoisting  works  mentioned  in  the  indictment;  and  if  you 
further  lind  that  by  means  of  and  from  the  manner  in  which 
said  defendants,  and  others  associated  with  them,  mot  in  said 
hall,  and  from  the  nuinner  in  which  said  marching  was  done 
and  said  works  closed  down,  feelings  of  fear  or  terror,  of  dis- 
quiet or  unrest,  and  insecurity  as  to  the  safety  of  proj)erty, 
were  created  or  engendered  among  the  residents  of  Silver 
Reef, —  then,  and  in  such  case,  I  instruct  you  that  tliis  is  such  u 
disturbance  of  the  public  peace  as  is  contemplated  by  the  stat- 
ute defining  riot,  under  which  the  defeniUmts  staiid  charged." 

It  is  claimed  with  much  earnestness  that  these  instructions 
are  erroneous,  as  they  do  not  correctly  state  the  law  as  to  the 
amount  of  force  necessary  as  a  component  i)art  of  riot;  that 
there  must  have  been  "  such  actual  force  or  violence  as  was 
calculated  to  inspire  people  with  terror,  such  as  being  armed, 
using  threatening  speeches,  turbulent  gestures,  or  the  'like.'' 
Our  statute  in  defining  riot  says,  "  any  use  of  force  or  vio- 


PEOPLE  V.  O'LAUOHLIN. 


553 


lence,  disturbing  the  public  peace,  or  any  threat  to  use  force 
or  violence,  if  accompanied  by  immediate  power  of  execution," 
is  riot.  The  words  do  not  imply  that  such  use  of  or  that  to 
use  force  or  violence  should  be  noisy,  boisterous  or  tumultuous, 
or  be  accompanied  with  threatening  speeches,  or  turbulent,  or 
that  the  men  using  force,  or  threatening  to  use  it,  need  be 
armed.  A  riot  does  not  so  nmch  depend  upon  the  strength  of 
voice  as  ujjon  the  intent  orpurjjose  and  the  power  of  immedi- 
ately executing  the  purpose.  Force  in  animate  or  inanimate 
nature  is  not  necessarily  boisterous,  nor  the  execution  of  it  at- 
tended with  noise  and  turbulence.  The  man  who  silently,  and 
perhaps  with  extreme  politeness  of  numner,  administers  a  few 
grains  of  str^'chnine  to  his  unsuspecting  victim,  uses  force,  and 
is  just  as  much  an  assassin,  as  the  man  whose  murderous  at- 
tempt is  accompanied  by  the  Hash  and  explosion  of  gunpow- 
der in  the  shot-gun.  It  is  not  so  much  the  manner  in  which  a 
thing  is  done  as  tlie  execution  of  intent  tluit  constitutes  the 
crime.  A  half  dozen  brigands  may  denmnd  the  pocket-book 
of  a  travekH"  without  the  least  exliibition  of  tuibulence  or  vio- 
lence in  iiiiuiner  or  gesture,  and  this  demand  may  be  in  the 
form  of  a  re([uest,  couciied  in  terms  of  the  most  exquisite  po- 
liteness, and  behind  it  all  exists  a  diabolism  that  does  not  lies- 
itate  to  take  human  life  u[»on  the  least  resistance  or  hesitation 
to  delivci'.  And  is  it  any  the  less  robbery  because  the  victim 
chooses  to  give  up  his  money  rather  than  to  further  risk  his 
life,  allliougli  there  is  in  fact  no  twhibltion  of  violence,  yet 
every  act  and  word  imi)lies  not  only  violence  but  power  and 
force,  a  resistance  to  which  endangers  human  life? 

O'Lauglilin,  in  giving  the  order  to  tiiose  in  charge  of  the 
Savage  shaft,  "  V<m  are  to  cease  all  work  on  the  Savage  shaft 
and  draw  the  lire,  and  not  start  up  until  ordered  by  the  union," 
was  carrying  out  the  vote  adopted  by  tlie  union,  and  the  union 
had  i)()wer  to  carry  out  its  orders.  This  was  an  order  full 
of  signiiicance,  expressing  an  unlawful  purpose,  and  being 
backed  by  tliree  hundred  men,  resistance  by  those  to  whom  it 
was  directed  would  have  been  useless,  undoubtedly,  and  have 
been  followed  by  consequences  which  the  men  in  charge  were 
wise  in  avoiding.  The  evidence  does  not  show  that  the  defend- 
ants or  their  associates,  at  their  meeting  in  Miners'  Union 


554 


AMERICAN  CRIMINAL  REPORTS. 


Hall,  on  their  march  through  the  streets,  or  at  the  timo  the  or- 
der of  O'Laughlin  to  cease  Avork,  etc.,  was  made,  were  cither 
boisterous  or  noisy;  but  it  does  show  that  these  defendants, 
and  those  acting  with  them,  Avere  regardless  of  the  rights  and 
property  of  othei's;  that  they  voted  to  stop  tiio  works  and 
business  of  theStorniout  Mining  Company ;  that  they  went  to  the 
premises  with  force  sufficient  to  do  it,  and  without  right  obta  ined 
possession  of  them,  closed  down  the  works,  stopped  business,  re- 
tained possession  and  excluded  the  lawful  occupants  therefrom. 
The  question  whether  the  acts  of  ti\e  defendants  and  those 
with  whom  they  were  acting  were  a  sufficient  use  of  force,  or 
a  threat  to  use  force  with  the  power  of  immediately  executing 
the  same,  and  were  such  a  breach  of  the  public  peace  as  to  bo 
Avithin  the  intent  of  the  statute  defining  riot,  was  proper!}'  sub- 
mitted to  the  jury  by  the  court.  Bell  v.  MaUorij,  CI  111.,  107; 
State  V.  Sfmw,  133  Me.,  'uA;  3  Greenl.  Ev.,  g§  231-233;  1  Bisli. 
Crim.  Law,  $;§  54(5,  548,  500,  502. 

The  testinxmy  of  Allen,  the  superintendent  of  the  mining 
Avorks  of  the  Stormout  Company,  that  defendant  Chatham,  one 
of  the  committee  a|)pointed  to  shut  down  and  stop  the  works  at 
the  Savage  shaft  and  premises,  refused  to  allow  Allen  to  enter 
the  Avorks  on  the  same  day,  but  after  the  i)rocession  and  crowd 
had  left,  Avas  properly  admitted.  His  possession,  Avith  that  of 
others  of  the  committee  Avith  him,  AA'as  in  obedience  to  the 
A'ote  at  the  hall,  and  AA'as  carrying  out  the  purpose  for  which 
the  procession  Avas  formed,  the  march  performed  and  the  com- 
mittee selected.  His  acts  in  executing  the  expressed  will  of 
his  associates  and  co-defendants  Avas  competent  evidence,  not 
only  against  himself,  but  them  also. 

Testimonv  tending  to  shoAV  that  the  marching  of  the  minei-s' 
union,  their  vote  at  the  hall,  and  the  proceedings  at  the  Savage 
shaft,  caused  a  general  feeling  of  insecurity  and  alarm,  and 
that  the  Avitnesses  themselves  had  such  feelings,  and  that  they 
at  the  time  heard  others  express  the  same,  Avas  rightly  admit- 
ted. It  Avas  competent  to  proA'e  in  this  Avay  that  the  actions 
of  the  defendants  and  their  associates  did  disturb  the  public 
peace. 

The  defense  asked  for  a  large  number  of  instructions,  a  great 
portion  of  Avhich  Avere  given.    Upon  an  examination  of  them 


TOBIN  V.  THE  PEOPLE, 


555 


and  the  other  inntructions  contained  in  the  charge  of  the  court, 
wo  are  all  of  the  opinion  that  the  charge  to  the  jury  was  (juito 
as  favorable  to  the  defcMiso  as  the  law  permitted,  and  that  there 
was  no  error  in  refusing  those  not  given. 
The  judgment  of  the  district  court  is  affirmed. 


ToBix  V.  The  PKorLE. 

(104  111.,  5G3.) 
RoBBEKY:  Larceny — Receiving  Molen  goods —  Verdict. 

1.  Finding  party  guilty  of  two  offenses  orowino  out  of  a  single 

TRANSACTION. —  A  party  cannot  Iw  Kiii'ty  of  rulibory  and  of  bavin}?  re- 
ceived the  same  goods  obtained  by  the  rubbery,  knowing  theia  to  have 
been  so  obtained,  where  there  is  but  a  single  transaction  invijlved,  and 
a  verdict  finding  him  guilty  of  the  robbt-ry,  and  of  the  lai-ceny  of  the 
goods  so  taken,  and  of  receiving  them,  knowing  them  to  have  been 
stolen  or  m:quired  by  robbery,  is  inconsitstcnt.  Tlie  latter  offense  im- 
ports a  subseijuent  and  distinct  transaction  from  the  robbery,  and  in- 
volves some  other  person  who  had  previously  obtained  the  property  by 
robbery. 

2.  Veudict  must  FIND  THEIR  VALUE. —  Tliero  ciinnot  be  imprisonment  in 

the  penitentiary  for  the  oftenso  of  receiving  property  obtainwl  by  rob- 
bery, unlets  the  value  of  the  property  exceeds  $15 ;  luid  to  authorize 
such  punishment  the  verdict  of  the  jury  must  find  the  value  of  the 
proi)erty. 

Writ  of  Error  to  the  Criminal  Court  of  Cook  County;  the 
Hon.  Jolni  G.  llogers,  Judge,  presiding. 

Mr.  John  G'Mom,  for  the  plaintiff  in  error. 

As  to  the  joinder  of  olfenses  in  one  indictment,  and  com- 
pelling an  election:  Wharton's  Criminal  PI.  and  Pr.  (Sth  ed.), 
sec.  'Jl)4;  1  Pishop's  Criminal  Procedure,  ch.  30  (.3d  ed.);  Ilar- 
mon  V.  CommonweaH/i,  12  S.  &  E.,  00;  State  v.  Jolimon, 
3  Harrington,  501;  Goodhue  v.  Peoj)k,  94  111.,  37;  Wharton's 
Criminal  Law,  sec.  1387. 

It  cannot  be  contended  that  robbery  or  larceny,  and  receiv- 
ing stolen  goods,  are  cognate  offenses,—  that  they  can  form 
part  of  the  same  transaction,  or  that  they  are  such  in  their 
nature  that  the  defendant  might  be  guilty  of  both.    Peoj^le  v. 


550 


AMERICAN  CRIMINAL  REPORTS. 


Ilarrideii,  1  Parker,  3i-4;  1  Bishop's  Criminal  Procedure,  sees. 
189,  213. 

To  constitute  robbery,  the  property  must  not  only  be  valu- 
able, but  it  must  be  also  taken  from  the  person  and  the  peace- 
able possession  of  the  owner  Phqwcs  Case,  2  Leach,  773; 
Jiex  V.  Edwards,  G  Car.  &  P.,  521;  Moore's  Criminal  Law,  54; 
Wharton's  Criminal  Law,  ucc.  878. 

The  verdict  is  defective  in  not  finding  tlie  value  of  the 
stolen  property  received.  This  is  necessaiy  wliere  the  punisli- 
ment  depends  on  value  of  property,  etc.  IViomas  v.  State,  5 
IIow.  (Miss.),  20;  Shines  v.  State,  42  .  ':iss.,  331;  State  v.  Cleve- 
land, 58  ]\[e.,  504;  Bkk  v.  State,  3  Oliio  St.,  80;  Colla  v.  State, 
10  Ala.,  781;  31cPhe)'soih  v.  State,  ^  Yerg.,  270;  Keimedij  v. 
reo_ple,  39  K  Y.,  345 ;  Williams  ct  al.  v.  People,  44  111.,  478. 


'i 


Mr.  Justice  Sheldon  delivered  the  opinion  of  the  court. 

At  the  ]\Lay  term,  1882,  of  the  criminal  court  of  Cook 
county,  an  indictment,  consisting  of  three  counts,  charging  re- 
spectively, robbery,  larceny  and  receiving  stolen  property,  was 
found  against  James  Tobin,  Allen  Cummings  and  Frank  Will- 
iams. Upon  trial  had,  the  jury  returned  the  following  ver- 
dict: "AVe,  the  jury,  find  the  defendants  James  Tobin  and 
Frank  AVilliams  guilty,  in  manner  and  form  as  charged  in  the 
indictment,  and  fix  their  terms  of  imprisonment  at  four  years 
each  in  the  penitentiary  of  this  state."  The  court,  having 
overruled  a  motion  for  a  new  trial  as  to  Tobin,  sentenced  him 
to  four  years'  imprisonment  in  the  penitentiary,  and  this  writ  of 
error  was  brought  to  reverse  the  judgment. 

As  the  verdict  reads,  the  jury  found  the  two  defen(hints 
guilty  of  each  one  of  the  three  offenses  chin'ged  in  the  indict- 
ment. l>ut  this  could  not  properly  have  been,  under  the  evi- 
dence in  the  case.  It  is  an  inconsistc^ncy  that  where  there  is 
but  a  single  transaction  involved,  as  the  ])roi»f  shows  to  have 
been  here,  the  same  jjcrson  could  have  been  guilty  of  botii  of 
the  offenses  of  robbery,  and  of  having  received  goods  obtained 
by  robbery,  knowing  them  to  have  been  so  obtain(>d.  The  ob- 
jection is  not  from  the  joinder  of  counts,  —  they  are  well 
enough  joined.  Bennett  v.  l*e<>pl<',  00  111,,  Oo2;  I.tjonx  v.  People, 
08  id.,  271;  Hiner  v.  People,  34  id.,  207.  The  difliculty  is 
brought  into  the  case  by  the  evidence.     The  three  offenKcs 


TOBIN  V.  THE  PEOPLE. 


557 


sees. 


cliargecl  in  the  indictment  are  not  comprised  in  robbery.  Lar- 
ceny mij^ht  be  em\)race(l  in  it,  but  it  is  otherwise  witli  receiv- 
ing property  obtained  by  robbery.  This  imports  a  distinct  and 
subsequent  transaction,  and  involving  anotlier  })erson,  the  re- 
ceiver receiving  the  property  from  some  other  jwrson  Avho  had 
previously  obtained  it  by  robbery.  The  statute  implies  this 
in  providing  that  in  the  prosecution  fortius  offense  it  shall  not 
be  necessary  to  aver  or  to  prove  that  the  person  who  obtained 
the  property  by  robbery  has  been  convicted.  As,  then,  the 
prisoner  could  not,  under  the  evidence  in  this  case,  have  been 
guilty  of  both  these  offenses,  of  v.  hi 'h  one  did  the  jury  find 
him  guilty?    The  proof  renders  this  uncertain. 

The  prosecuting  -witness  testified  that  on  the  night  of  the 
10th  day  of  ^lay,  1SS2,  about  half-past  10  o'clock,  he  was,  in 
the  street  in  Chicago,  set  upon  by  three  men  and  robbed  of  a 
watch  and  chain.    A  pawnbroker  in  Chicago  testified  that  on 
the  morning  of  the  llth  of  May,  1SS2,  Tobin  sold  him  the 
watch  and  chain  for  $4.    The  defendant  Williams   testified 
that  he  knew  nothing  of  the  robbery;  that  the  morning  after 
the  robbery  was  said  to  have  been  committed  he  was  eating 
l>reakfast  in  a  certain  restaurant  at  tlie  tal)le  with  Tobin;  that 
a  man,  whose  name  he  afterwards  learned  was  Ileaney,  came 
to  Tobin  and  asked  him  if  he  knew  where  he  could  sell  his 
watch  and  chain ;  that  Tobin  inquired  of  witness  if  ho  knew  a 
place,  and  witness  mentioned  the  pawnbroker's  place;    that 
tliereupon  IFeaney  gave  the  watch  and  chain  to  Tobin  to  sell, 
and  tliat  witness  went  with  Tobin  to  the  pawnbroker's  office, 
where  Tobin  sold  the  watch  and  chain  for  84,  and  gave  the 
money  to  Ileaney.    Tobin  testified  substantially  to  the  same 
facts  as  Williams,  and  denied  all  connection  with  the  robbery. 
It  will  thus  be  seen  that  there  was  evidence  tending  to  show 
thnt  there  was  committed  but  merely  the  offense  of  receiving 
goods  obtained  by  robbery,  and,  as  before  remarked,  the  pris- 
oner could  not  properly  liave  been  found  guilty  of  both  the 
offenses  of  robbery,  and  of  receiving  the  property  obtained 
by  the  robbery  wl'^re  the  proof  shows  that  there  has  been  but 
a  single  transaction  involved.    It  is  uncertain,  then,  from  the 
evideiice,  of  which  one  of  these  two  offenses  the  prisoner  was 
found  guilty.     It  might  have  been  of  the  last  named  one,  and 
if  so  the  judgment  of  imprisonment  in  the  penitentiary  is  not 


m 


;«' 


558 


A5IERICAN  CRIfflNAL  REPORTS. 


m. 


■warranted  by  the  verdict,  as  the  value  of  the  property  obtained 
by  the  i-obbery,  or  received,  was  not  found  by  the  verdict. 
There  cannot  be  imprisonment  in  the  penitentiary  for  the 
offense  of  receiving  property  obtained  by  robber^',  unless  the 
value  of  the  property  exceeds  $15,  and  in  such  a  case,  to  jus- 
tify a  sentence  of  imprisonment  in  the  penitentiary,  this  court 
has  always  held  that  the  verdict  must  find  the  value  of  the 
property,  so  as  to  show  it  to  be  a  case  where,  under  the  law, 
the  punishment  of  imprisonment  in  the  penitentiary  is  author- 
ized. n!yhl<iiid  V.  People,  1  Scam.,  392;  Sawyer  v.  I*eoj}Ie,  3 
Gilm.,  53. 

The  judgment  will  be  reversed  and  the  cause  remanded. 

Judgment  reversed 

Note.— It  was  decided  in  Gilbert  r.  The  State,  C5  Ga.,  449,  that  burglary 
and  larceny  may  properly  be  joined  in  an  indictment,  and  so  may  larceny 
and  receiving  stolen  goods,  but  that  counts  for  burglary  an<l  receiving  stolen 
goods  ought  not  to  be  joined.  And  with  reference  to  coniiiclling  the  prose- 
cutor to  elect  upon  which  count  to  proceed,  the  court  held  that,  if  it  appears, 
from  the  indictment,  that  the  charges  are  diiTerent,  the  election  may  bo 
made  when  the  indictment  is  read  to  the  jury,  and,  if  the  difference  appears 
from  the  evidence,  the  election  may  then  lie  made,  but  that  it  must  be  called 
for  before  the  defendant  opens  his  case. 

The  verdict . —  Ujion  the  trial  of  an  information  for  7obl)ery  the  verdict 
was:  "We,  the  jury,  find  the  defendant  guilty,  as  charged  in  the  informa- 
tion," and  it  was  urged  that  the  crime  of  robliory,  as  charged,  also  involved 
the  crimo  of  grand  larceny,  of  wliiih  it  was  within  the  power  of  the  jury 
to  find  the  defendant  guilty,  anj  that  the  verdict  sliould  have  specified 
of  which  of  these  two  crimes  tlie  defendant  wiis  found  guilty ;  held,  that  as 
robbery  was  the  crime  charged,  there  could  be  no  unccilainty.  People  r, 
Oilbert,  mCal,  108. 

In  People  v.  Coch,  53  Cal.,  627,  the  defendant  was  indicted  for  arson,  and 
the  verdict  was  "guilty,  as  charged  in  tl>«  indictment;"  hchl  that,  as  the 
Clime  of  arson,  under  the  code,  was  distinguishable  into  degi-ees,  the  ver- 
dict was  too  general  in  not  finding  the  degree  of  the  crime  of  which  the 
defendant  was  foi'nd  guilty.  For  the  same  reason,  in  People  v.  Coviplwll, 
40  Cal.,  129,  which  was  a  trial  for  murder,  the  court  helil  that  the  rt  ■•  '■  ' 
was  too  general. 


STATE  V.  CARPENTER. 


559 


State  v.  Carpenter  et  al. 

(54Vt.,  551.) 

Resistinq  an  officer  :  Indictment — Judgment  —  Assmdt. 

1.  Not  necessary  to  aver  how  officer  acted. —  The  respondents  were 

indicted  for  hindering  an  officer.  One  of  them  pleaded  guiltj',  and 
moved  in  arrest  of  judgment  for  the  insufficiency  of  the  indictment. 
Held,  that  it  was  not  necessary  that  the  manner  in  which  the  officer 
was  attempting  to  discharge  liis  duty  sliould  be  averred  in  tlie  indictment. 

2.  But  it  must  be  alleged  that  the  accused  knew,  at  the  time  of  the  hin- 

drance, that  such  officer  v.-as  one  of  the  officers  described  in  the  statute, 
whom  it  is  made  a  crime  to  hinder.  And  if  it  is  not  so  alleged,  such 
defect  may  be  taken  advantage  of  in  arrest  of  judgment. 


G.  B.  Shmo,  for  the  respondent. 
M.  A.  Bingham,  for  the  state. 

The  opinion  of  the  court  was  delivered  by 

RoYCE,  J.  The  respondents  were  indicted  under  sec.  4284  of 
the  Revised  Laws  for  hindering  an  officer  in  the  execution  of 
his  office.  Fassett  was  tried  and  found  guilty.  Carpenter  then 
witliiU-ew  his  plea  of  not  guilty  and  pleaded  guilty,  and,  after 
verdict  and  before  judgment,  moved  in  arrest  of  judgment  for 
the  insufficiency  of  the  indictment,  fjccause  it  is  not  alleged 
tliorein  with  sufficient  particularity  and  accuracy : 

1st.  The  nature  of  the  officer's  official  duty  and  the  manner 
of  its  execution. 

It  is  provided  by  sec.  2794,  R  L.,  that  a  pcliceman  appointed 
by  tlic  trustees  or  bailiffs  of  an  incorporated  village  shall  have 
the  same  powers  witliin  the  limits  of  tlie  village  in  criminal 
matters  as  constables.  A  constable  may,  without  warrant  (and 
it  is  his  official  duty  virtute  officii),  interfere  to  prevent  a  breach 
of  the  peace,  and,  when  an  affray  takes  place  in  liis  presence, 
may  keep  the  parties  in  custody  until  it  is  over,  or  take  them 
immediately  before  a  magistrate.  1  Chitty's  Crim.  Law,  17. 
And  it  is  not  necessary  that  the  manner  in  wliich  he  was 
attempting  to  discliarge  that  duty  should  be  averred  in  the 

indictment. 

2d.  Tliat  tliero  is  no  sufficient  allegation  that  Carpenter,  at 
tlic  time  of  the  alleged  assault,  hindrance  and  obstruction, 


r 

1 

'I^T' 

' 

5G0 


AMERICAN  CRIMINAL  REPORTS. 


knew  tliat  Laroso  was  a  police  officer  or  acting  in  such 
capacity. 

To  constitute  the  crime,  under  the  statute,  of  hindering  an 
officer  in  the  execution  of  his  office,  it  must  be  shown  that  the 
party  accused  knew,  at  the  time  he  is  charged  with  hindering 
such  officer,  that  he  was  one  of  the  officers  described  in  the 
statute  that  it  is  made  a  crime  to  hinder;  and  that  being  a  fact 
that  must  be  found  to  justify  a  conviction,  it  was  necessary 
that  it  should  be  alleged  in  a  travci*sable  form  in  the  indict- 
ment that  the  party  had  such  knowledge. 

It  was  l;e!d  in  State  v.  Downer  ct  al.,  8  Vt.,  42+,  that  it  sliould 
be  alleged  that  the  respondent  know  of  the  character  in  whicli 
the  officer  claimed  to  act ;  and  in  State  v.  Burt  ct  al.,  25  Vt.,  J)73, 
an  indictment  in  which  no  sucli  averment  was  made  was  held 
bad  upon  demurrer.  It  cannot  be  presumed  that  the  respondent 
had  such  knowledge;  and  the  possession  of  it  was  a  necessary 
element  to  constitute  the  crime.  The  indictment  was,  therefore, 
fatallv  defective  for  not  alleging  it.  The  defect,  being  one  of 
substance,  was  not  cured  by  the  jilea;  and,  although  it  might 
have  been  taken  advantage  of  by  demurrer,  it  may  l)e  urged 
in  arrest  of  judgment.  4  Bl.  Com.,  .'37.5;  1  Chitty's  Crim.  Law, 
539. 

The  indictment  being  bad  for  the  reason  stated,  as  charging 
the  respondent  with  the  statute  crime  of  hindering  an  olllcor 
in  the  execution  of  his  office,  it  is  nnnecessarv  to  notice  the 
other  objections  that  were  made  to  it.  The  court  ovei-rulod 
the  motion;  and  although  the  indictment  was  defective  in  (he 
particular  above  stilted,  yet,  if  it  c(mtaine(l  a  complete  desci-ii)- 
tion  of  such  facts  and  circumstances  as  constituted  a  crime,  it 
Avas  properly  overi'ubd.  In  State  v.  Bxtrt  et  al.,  suj»-(i,  there 
was  only  one  count  in  the  indictment,  and  that  was  based 
upon  the  statute  against  hindering  an  officer  in  the  execution 
of  his  office;  and,  although  it  was  held  to  be  bad  as  charging 
the  commission  of  a  crime  under  that  statute,  it  being  alleged 
that  the  respondent  made  an  assault  upon  the  officer,  the  court 
held  that  it  was  sufficient  for  a  common  assaidt  at  common 
law,  or  under  the  general  statute  upon  the  subject  of  breach 
of  the  peace.  Here  the  respondent  is  charged  with  having 
committed  an  assault  and  battery  upon  the  officer.  That  case 
and  State  v.  Downer  et  ah,  svjpra,  are  full  authorities  for  hold- 


^imm 


FANNING  V.  THE  STATE. 


561 


tho 


ing  that  the  indictment  was  sufficient  as  charging  tho  respond- 
ent with  the  crime  of  having  committed  an  assault  and  battery 
upon  the  officer.  There  was  no  error  in  overruling  the  motion, 
and  the  respondent  takes  nothing  by  his  exceptions. 

Note.— See  note  to  Fleetwood  v.  Com.,  page  30,  "  Arrest." 


i 


f 


Fanning  v.  TnE  State.  Ife 

(CGGa.,  107.) 

KoBBERY:  Larceny  from  the  person. 

Distinction  between  bobbeuy  and  lauceny  fuom  the  perron.— To  con- 
fititute  robbery,  as  «listingiiished  from  larceny  from  the  pci-son,  thero 
must  be  force  or  intimidation  in  the  act ;  therefore,  where  a  thief  slipped 
his  h.ond  into  ihe  pocket  of  a  lady  and  got  his  finger  caught  therein, 
and  she  felt  the  hand,  and,  turning,  saw  h.iui  unconcernedly  looking  at 
the  houses,  and  caught  him  by  the  oat,  which  was  left  with  her  in 
making  his  escape,  held,  that  tho  crime  is  larceny  from  the  person,  and 
not  robbery,  though  the  lady's  pocket  was  torn  in  extracting  liis  hand. 

Before  Judge  Simmons,  Fulton  Superior  Court. 

Frank  A.  Arnold,  for  plaintilf  in  error. 

li.  II.  Hill,  J/'.,  solicitor-general,  tor  the  state. 

Jackson,  Ciiikf  Justice.  The  substantial  facts  in  this  case 
are,  that  the  defendant  slipped  his  hand  into  a  lady's  pocket, 
and  furtively  took  therefrom  a  purse  of  money.  Before  he 
got  the  pui-se  entirely  out,  she  felt  the  hand  and  tried  to  seize 
it,  but  the  thief  had  succeeded  and  the  purse  was  gone.  In 
extracting  hand  and  purse,  the  pocket  was  torn,  and  when  the 
lady  turned  she  saw  the  thief  looking  unconcernedly  at  the 
houses  on  Whitehall  street.  She  rushed  upon  hiai  ajul  caught 
him  by  the  coat,  which,  in  his  struggle  to  escape,  was  left  torn 
in  her  possession.  Afterwards  a  policeman  arrested  and  secured 
him. 

Tho  sole  question  is.  Do  these  facts  make  a  case  of  robbery 
or  larceny  from  the  ])orsou  under  our  code? 

The  criminal  deed  was  consummated  when  the  purse  was 
taken  from  the  lady.  The  subso<nient  struggle  to  recapture  it 
by  seizing  the  thief  (cannot  be  consid«M-ed  to  deteriuino  whether 
Vol.  IV  — 80 


5G2 


ABIERICAN  CRIMINAL  REPORTS. 


the  taking  itself  was  forcible,  or  private  and  furtive.  The  mci-e 
fact  that  the  pocket  was  torn  in  the  effort  to  get  the  furtive 
hand  out  with  the  purse  when  the  lady  felt  it  and  tried  to  seize 
it,  is  not  sufficient,  wo  think,  to  show  such  force  and  open 
violence  as  makes  the  crime  of  robbery. 

Under  the  code  of  this  state  robbery  is  "the  wrongful, 
fraudulent  and  violent  taking  of  money,  goods  or  chattels, 
from  the  person  of  another,  by  force  or  intimidation,  without 
the  consent  of  the  owner."  Code,  §  40S0.  There  was  no  in- 
•  timidation  here  at  all,  nor  was  there  such  force  or  violence  as 
to  constitute  robbery  as  distinguished  from  larceny,  under 
sections  4392  and  4410  of  the  code.  That  distincti*  i  is,  that 
larceny  from  the  person  is  the  stealing  privately  or  without 
the  knowledge  of  the  person  wronged,  or,  as  the  dclinition  of 
robbery  would  make  it,  without  violence  and  force,  or  intimida- 
tion. The  attempt  and  intent  in  this  case  was  private,  and  the 
deed  was  done  without  the  knowlege  of  the  lady,  except  that 
she  felt  somebody's  hand,  and,  turning,  saw  the  thief,  and  then 
with  the  knowledge  came  the  effort,  not  to  prevent  the  capture 
of,  but  to  recapture,  the  stolen  jiurse. 

There  being  no  attempt  on  the  part  of  the  thief  to  use  force 
or  to  intimidate  the  lady,  but  the  whole  facts  showing  that  his 
purpose  was  to  take  the  pui-se  ])rivately  and  without  her 
knowledge,  with  intent  to  steal  it,  and  the  nature  of  the  ci'ime 
being  ascertained  by  that  intention  which  is  alwa^'s  an  element 
in  it  (Code,  §  4202),  as  well  as  by  the  consummatiim,  which  in 
this  case  was,  in  the  act  itself,  private  and  furtive  and  not 
forcible,  avo  conclude  that  the  defendant  should  have  been 
found  guilty,  not  of  robbery,  but  of  larceny  from  the  i)erson, 

and  a  new  trial  must  bo  g]'antcd. 

Judgment  reversed. 


Rice  v.  Commonwealth. 

(102  Pa.  St.,  408.) 

Seduction:  Evidence. 

1.  SOCIAIi  ATTENTIONS  NOT  SUFFICIKNT  CORROIIORATION.— In  a  trial  for 
seduction  under  jjromiHe  of  niarriiiKO,  ovid(^nce  of  such  social  attcmtioiia 
on  the  part  of  the  defendant  to  tlu;  prosecutrix,  as  acc-ompanying  her 
from  clmrch,  uilling  on  her  at  tlie  Iiouhc  of  her  parents,  and  tliere  wail- 


RICE  V.  COMMONWEALTH. 


§63 


ing  on  her  now  and  then  for  two  ycara,  is  not  sufficient  to  corroborate 
the  prosecutrix's  testimony  to  the  effect  tliat  a  promise  of  marringe  waa 
made  to  her,  and  will  not  wairunt  the  jury  in  finding  that  fact  in  the 
affirmative. 

2.  Contrition  op  defendant.— Whore  there  is  testimony  that  the  defend- 
ant called  on  the  prosecutrix's  mother  and  expressed  contrition  for  what 
he  had  done,  and  declared  his  willingness  at  the  same  time  to  make 
amends  by  marrying  the  prosecutrix  after  a  time,  such  testimony  is  not 
evidence  from  vluch  a  jury  could  safely  find  a  previous  promise  to 
marry. 

8.  WiTiiiiOLDiNa  TESTIMONY  BY  mosECUTioN.— Failure  on  tfiepart  of  the 
prosecution  to  call  the  father  of  the  prosecutrix,  who  was  present  at  the 
conversation,  to  testify  to  particulars  tlioreof,  was  a  circumstance  wliich 
would  have  justified  an  inference  unfavorable  to  the  prosecution,  and 
the  court  would  have  been  warranted  so  to  instruct  the  jury. 

4.  Statement  to  third  person. —  Testimony  of  a  conversation  between 

the  defendant  mid  a  third  person,  in  tlie  course  of  wlxich  the  defendant 
said,  in  reference  to  tlie  matter  in  liand,  that  "  he  would  give  $200  tO 
settle  it,  and  no  more ;  tliat  he  was  guilty  of  the  cruue,"  was  not  evi- 
dence of  a  pronuse  of  marri.ige. 

5.  Conviction  for  fornication. — While  the  evidence  did  not  warrant 

a  conviction  for  seduction  under  promise  of  mju'riage,  yet  a  conviction 
for  fornication,  etc.,  miglit  be  sustained  under  the  same  indictment. 

Error  to  the  Court  of  Quarter  Sessions  of  Lackawanna 

County. 

Corndim  Smith,  for  the  plaintiff  in  error. 
//.  M.  Hannah,  witli  J.  F.  CoanolUj,  for  the  defendant  in 
error. 

Mr.  Justice  Paxson  delivered  the  opinion  of  tho  court,  April 
%  1883. 

When  this  case  was  here  upon  a  former  writ  of  error,  we 
said  pointedly  that  "the  mere  evidence  of  his  (plaintiff's)  at- 
tentions was  not  suflicient  to  carry  the  case  to  the  jury."  In 
other  words,  they  were  not  such  attentions  as  would  justify  a 
jury  in  presuming  a  promise  of  marriage,  or  would  amount  to 
such  corroboration  of  the  prosecutrix  as  the  act  of  assembly 
requires  in  cases  of  seduction.  Upon  a  state  of  facts  in  no  es- 
sential features  differing  from  those  of  the  former  trial,  the 
learned  judge  below  charged  the  jury  (see  seventh  assignment): 
"  But  there  is  evidence  of  social  attention  of  various  kinds,  if 
you  believe  it.  If  it  is  true  that  tliis  young  man  did  accom- 
pany this  young  lady  from  churcli  and  waitetl  upon  her  home, 
and  called  at  the  house  of  her  parcjiits,  and  there  waited  upon 


AMERICAN  CRIMINAL  REPORTS. 


her  now  and  then  for  two  years,  that  is  such  social  attention, 
within  the  moaning;  of  our  supreme  court,  as  would  warrant 
you  in  findinjj  that  fact  in  tlie  ullirniativo,"  The  fact  to  whicli 
the  learned  judge  referred  was  the  promise  of  marriage.  IIo 
has  entirely  mistaken  our  language  and  moaning.  Wo  re- 
peat now  wliat  we  said  then,  that  the  evidence  of  attentions 
Ou  the  part  of  the  plaintiff  to  the  prosccutrbc  was  not  sulli- 
Cient  to  submit  to  the  jury  upon  the  question  of  corrobora- 
itton.  And  the  jury  should  be  so  instructed  in  the  future,  if 
oc.cessary,  upon  tlie  same  or  a  similar  state  of  facts. 

But  one  otlier  matter  remains.  We  said  lufore  with  some 
reluctance  thf't  "  wo  cannot  say  it  was  error  to  refuse  to  with- 
draw the  question  of  seduction  from  the  jury.  There  was 
some  proof  that  plaintiff  in  error  admitted  the  promise  to 
marry."  The  evidence  was  exceedingly  weak,  but  as  the  case 
had  to  go  back  for  other  reasons,  we  thought  best  to  allow 
this  question  to  bo  again  submitted  to  the  jury.  It  has  not 
been  strcngtlioned  upon  the  second  trial.  The  mother  of  the 
prosecutrix  sent  for  tlie  plaintiff  in  error,  after  slie  h>arned  her 
daughter  was  in  trouble.  He  camo  to  her  house  and  h.ad  an 
interview  with  her  in  the  pre.senc3  of  her  husband  and  her 
daughter.     Mrs.  Tlobartson  thus  relates  what  occurred: 

Q.  What  did  you  say  to  him  (plaintiff);  what  were  the 
words? 

A.  I  told  him  this  was  a  nice  job  he  had  done;  I  told  him 
lie  must  fuKil  his  promise  and  not  to  bring  the  rest  of  the 
family  to  shame. 

Cross-examined:  Q.  I  want  you  to  tell  the  first  thing  said, 
who  said  it,  and  the  answer  ? 

A.  IIo  bid  good  evening  with  mo  and  said  ho  was  sorry  for 
what  he  had  done. 

Q.  Told  you  ho  was  sorry  for  wliat  lie  had  done ;  who  spoke 
next? 

A.  Himself;  ho  said  ho  would  marry  if  I  waited  two  weeks, 
because  ho  said  he  owed  his  sister  some  money;  I  told  him  to 
fulfil  his  promise  and  not  bring  my  family  to  shame. 

There  is  nothing  here  from  which  a  jury  could  safely  find  a 
previous  promise  to  marry.  This  view  is  strengthened  by  wliat 
followed.  Upon  her  re-direct  examination  the  same  witness 
related  what  occurred  as  follows : 


RICE  V.  COMMONWEALTH. 


sm 


Q.  Tell  us  v.'hat  took  placa  at  tlio  cimo  Eico  cama  to  yoiD* 
liouso,  whoii  you  sent  for  him? 

A.  lie  came  to  talk  to  mo. 

Q.  AVliat  Avas  the  lirst  thin;^  said  ? 

A.  Wo  bid  •^ood  evening  to_!^ctlicr,  and  lio  told  rne  ho  was 
sorry  for  what  he  had  done,  and  if  I  should  leave  it  for  two 
weeks,  he  would  marry  her;  I  told  him  I  would  not  leave  it 
two  days;  I  said  I  ha<l  a  small  family  coming  up,  and  did  ntJt 
want  to  bring  them  to  shame ;  ho  said  he  hadn't  money  enough 
to  got  married  now,  he  owed  his  sister  board.  I  soad  he  coulfl 
get  married  and  have  hor  homo  there,  and  not  to  bring  my 
little  family  to  shame. 

Cross-examined:  Q,  Then,  if  I  understand  it  now,  it  waJs 
this  Avay:  Kicc  said  he  owed  some  money  for  board,  and 
could  not  many  short  of  two  weeks?  ,        ■ 

A.  Yes,  sir. 

Q.  And  then  you  went  on  and  said  ho  could  fulfil  his  prom- 
iso,  that  he  would  have  a  home  thore  ?  ' 

A.  I  said,  if  he  would  fulfil  his  promiso,  and  let  her  com© 
homo,  as  ho  promised,  that  her  homo  was  thore  for  her,  and 
not  bring  my  family  to  sliamo,  as  I  told  you  bofore. 

As  the  case  now  stands,  it  is  our  duty  to  express  a  dccidefl 
opinion  \\\toxs.  this  evidence.  The  implication  which  might  bo 
gathered  from  the  examination  in  chief,  that  the  plaintiff  re- 
ferred to  a  previous  promise  to  marry,  is  entirely  removed  by 
the  cross-examination,  which  shows  that  the  plaintiff  was  merely 
e:q)ressing  a  regret  for  what  he  had  done,  and  a  willingness  to 
repair  the  ^ATong  by  mai-rying  the  girl.  And  when  we  exam- 
ine the  subsequent  re-examination  and  recross  examination, 
there  cannot  be  a  doubt  upon  this  matter.  There  is  nothing 
here  u])on  which  this  verdict  can  stand.  The  evidence  was  at 
most  a  scAut'dla,  and  it  will  not  do  to  send  a  man  to  the  peni- 
tentiary upon  a  scintilla. 

It  was  said,  however,  that  the  case  was  strengthened  by  the 
testimony  of  Ody  Biglin,  who  stated  that  he  had  a  conversar 
tion  with  the  |)laintiff,  in  which  the  latter  said  "  he  would  givB 
§200  to  settle  it.  and  wouldn't  give  no  more;  that  ho  was  guilty 
of  the  crime."  It  would  be  straining  this  language  to  say  tho 
l)laintiff  referred  to  the  promise  of  marriage.  The  crime  of 
which   ho  admitted  his  guilt  was  evidently  the  illicit  inteiw 


fi66 


AIHERICAN  CRIMINAL  REPORTS. 


course.  That  was  not  seriously  denied;  indeed  tlio  plaintiff 
acknowledged  it  on  his  forinei*  trial. 

Thoro  was  one  feature  of  the  trial  below  that  wo  cannot 
pass  without  commout.  It  was  tho  failure  of  the  comnion- 
•wealth  to  call  tho  father  of  tho  prosecutrix  in  regard  to  tho 
conversation  we  have  referred  to  between  the  mother  of  tho 
prosecutrix  and  the  plaintiff.  The  prosecutrix  and  her  father 
wore  present  at  that  interview.  Neither  was  called.  It  matters 
little  about  the  prosecutrix,  as  her  evidence  in  regard  to  the 
promi.se  of  marriage  could  not  be  aidenl  by  placing  her  upon 
tho  stand  again.  But  under  the  circumstances  of  tliis  case,  it 
was  tho  plain  duty  of  tho  commonwealth  to  have  call'.xl  her 
father.  This  was  tho  more  necessary  by  reason  of  the  equiv- 
Gcal  character  of  Mrs.  Ilobortson's  testimony,  as  well  as  that 
of  her  daughter.  The  common  weal  tli  demands  justice,  not 
victims.  Tills  belongs  to  a  class  of  cases  where  the  whole 
truth  should  be  brought  out  if  possible.  ITpon  so  vital  a  ques- 
tion as  whether,  at  the  interview  referred  to,  tho  plaintiff  ad- 
mitted a  promise  of  mai-riago  prior  to  the  seduction,  the  neglect 
by  tho  commonwealth  to  call  the  father  of  tho  girl,  who  was 
present  at  the  interview,  an;l  lu.ird  all  that  was  said,  would 
Lave  justilied  tho  jury  in  drawing  an  inference  seriously  un- 
favorable to  the  pi'osecution,  and  tho  court  below  would  have 
been  at  least  justified  in  saying  so. 

If  the  plaintiff  in  error  has  been  guilty  of  fornication,  of 
which  there  seems  little  doubt,  ho  may  bo  convicted  of  that 
offense  under  this  bill. 

The  judgment  is  reversed,  and  it  is  ordered  that  tho  record, 
with  this  opinion,  setting  forth  the  causes  of  tho  reversal,  bo 
remanded  to  the  court  below  for  further  proceedings. 


State  v.  Tkiczevant. 

(20  S.  C,  303.) 

Sentence:  Practice. 

EaaOJl  WHICH  AFFECTS  SENTENCE  ONLY. — The  failure  of  tlic  cirruit  judge  to 
ask  a  prisoner  convictetl  of  munler,  "  If  lie  has  anything  to  say  why 
judginHnt  nhould  not  be  pronounced  on  liiin,"  is  rrror,  and  ri'i|uiro!j  u 


■■--M-' 


STATE  V.  TREZEVANT. 


m 


plaintiff 

!  cannot 
iomnion- 
l  to  tho 
>r  of  the 
LT  fiitlier 

matters 
I  to  tho 
icr  upon 
H  case,  it 
H'mI  her 
e  cquiv- 

as  tliat 
tico,  not 
10  wholo 
il  a  quos- 
intiir  ad- 

0  neglect 
who  was 
(1,  wouhl 
ously  uii- 
)ul(l  have 

nation,  of 

1  of  that 

0  record, 
•ei'sal,  bo 


t  judge  to 
0  say  why 
ri-ijulrei)  u 


resentence,  aUhouRh  the  prisoner  did  not  demand  that  this  question 
should  bo  asited.  But  as  tliis  error  alTocted  tlie  sentence  only,  the  pris- 
oner is  not  entitled  to  a  new  trial,  but  must  l)e  resentenced  utter  being 
BO  u^ked. 

Tills  was  an  indictment  agair.it  William  Trczcvant  for  mur- 
der. 

Mr.  Andrew  C.  Dlhble,  for  appellant. 
J/r.  Solicitor  Jervey,  contra. 

Tho  opinion  of  the  court  was  delivered  by 

Mr.  Chief  Justick  Snrpsox.  The  defendant  was  tried  and 
convicted  of  murder  at  the  May  term,  1883,  in  tho  court  of 
sessions  for  Orangeburg  county.  AVhen  called  for  sentence,  tho 
question  "  whether  he  had  anytliing  to  say  why  judgment 
should  not  be  pronounced  on  him,"  was  omitted.  The  appeal 
assigns  error  on  account  of  this  omission. 

There  is  no  doubt  that  in  capital  cases  the  practice  of  asking 
this  question  before  sentence  has  been  universally  recognized 
and  followed  in  this  state  from  the  earliest  period  of  our  judi- 
cial history.  State  v.  WnahiiKjfon,  1  Bay,  155.  And  it  seems 
that  it  has  been  the  practice,  not  simply  because  it  was 
formal  and  seemly,  but  because  of  legal  requirement  founded 
upon  wise  consideration,  and,  therefore,  necessary  and  indis- 
pensable. Mr.  Archbold  (1  Cr.  Pr.  &  PI.,  G7G)  says  that  in 
capital  cases,  before  judgment  is  pronounced  upon  the  defend- 
ant, it  is  indispensably  necessary  that  he  should  bo  asked  "if 
he  has  anything  to  say  why  judgment  should  not  bo  pro- 
nounced on  him,"  referring  to  1  Chitty,  Crim.  L.,  TOO;  West  v. 
State,  2  Zabr.,  212,  and  GraiJi/  v.  State,  11  Ga.,  253;  and,  also, 
that  this  should  appear  upon  the  record  to  have  been  done.  3 
Salk.,  358;  Mill.  Comp.,  157;  3  Mod.,  205. 

This  is  necessary,  because,  on  this  occasion,  tho  defendant 
may  allege  any  ground  in  arrest  of  judgment,  or  he  may 
plead  a  pardon,  etc.  4  131.  Com.,  370.  He  further  says,  that 
the  omission  to  do  this  in  cases  of  minor  felonies  is  not  a  suf- 
ficient ground  for  reversing  tho  judgment,  provided  it  appears 
that  the  prisoner  and  his  counsel  were  both  in  court  when  the 
sentence  is  pronounced,  and  urge  nothing  against  the  judgment 
or  in  mitigation  of  the  defendant's  guilt.     Gradij  v.  State,  11 


5<!8 


AMEIilCAN  CHIMIN  A  L  UKl'OUT.i 


» 


Ga.,  2r»;?.  The  samo  dootrino  is  found  in  1  IJish.  Cr.  Pro., 
§  805,  wlicre  ho  says  that  "It  is  now  indispensably  necessary, 
oven  in  clor<^yablo  felonies,  that  the  defenchint  should  b;;  asked 
if  ho  has  anything  to  say  why  jud^^niont  of  death  should 
not  be  pronounced  on  him."  4  Burr.,  2080;  3  Salk,,  3!)S; 
3  Mod.,  2(55.  Under  this  uniform  practica,  founded,  aa  wo 
have  seen,  upon  the  law,  the  defendant  hero  had  tho  right  to 
have*  this  question  propounded  to  him  before  sentence;  and, 
although  it  was  not  doinandod,  yet,  m  a  case  of  such  serious 
magnitude,  tho  omission  to  have  tho  question  asked,  wo  think, 
was  error. 

Next,  as  to  tho  clTcct  of  this  error.  "Wo  do  not  S30  why  it 
should  affect  tho  whole  proceeding,  and,  therefore,  render  a 
new  trial  necessary.  The  error  occui-r-  d  a  Uu'  trial  and  con- 
viction, and  applied  to  the  subsofjuent  proceeding,  to  wit,  tho 
sentence  only ;  and  in  reason  the  remedy  should  extend  only 
BO  far  iis  the  error  extended.  The  weight  of  authorities  sus- 
tains this  view.  1  I3ish.  Cr.  Pro.,  ^  12!);5;  MoCne  v.  Commoji- 
wealth,  78  Pa.,  191;  21  Am.  Hep.,  7;  'State  v.  Johntion,  G7  N. 
C,  59. 

It  is  tho  judgment  of  this  court  that  the  judgment  of  tho 
circuit  court,  as  to  pronouncing  sentence,  be  rovci-sed,  and  that 
tho  case  be  remanded  for  resautenco  after  tho  question  above 
is  asked  the  defendant. 

Note.— See  i7a;j)arfe  Wi7so»,  an^c,  233. 


In  ue  Jackson. 

(3  MacArtlmr  (D.  C),  24.) 

Sentence:  Several  terms  of  imprmmment  — Process  cannot  enlarge  judr/- 

ment. 

1,  Sentence  on  conviction  on  seveual  cnARCJES. —  \Vlion  a  prisoner  was 
aJjudf^od  ts  bo  imprisoned  for  tlirco  several  terms  of  one  hundred  and 
eiglity  days  each,  without  any  spocift^iation  as  to  tlie  time  of  beginning 
or  ending  of  the  two  last  terms  of  imprisonment,  held,  t!iat  ho  could 
not  be  imprisoned  for  a  period  exceeding  that  of  a  single  sentenic : 
lielcl,  also,  tliat  there  would  bo  no  error  in  a  judgment  making  one  term 
of  imprisonment  commence  wlion  another  terminates. 


M 


IN  KE  JAC'KKON. 


5G0 


I 


9.  Pnor;Kis  ov  ooMin-ninvT  cannot  rnlatwik  nrcconn.—  All  prooors  after 
jiul'^inont  mint  purs-jo,  but  cannot  l»o  usn  1  to  vary  or  control,  tho  juds- 
inunt.  An.l  inomoraniluin  upon  tliB  tioniinitmoiita  t-annot  bo  resorted  to 
for  tho  purpode  of  unlargin,:;  what  tho  court  has  aoleninly  adjudsoJ. 

Appoiil  from  an  ortloi'  disinisiing  a  writ  of  ha^^eas  corpus. 

C.  M.  Smith,  for  pctitionor. 

Fi'diicis  Millet',  a^jis'aui  distriot  attornay,  for  raipDn Jont. 

15y  Iho  Counr.  The  relator  appeal's  to  bo  imprisoned  for  tliroo 
Keveral  terms  of  one  hundred  and  eiglity  days  each,  without 
any  specifications  as  to  tho  timo  of  bo;^inning  or  ending  of  tho 
two  last  terms  of  imprisonment,  Tho  sentences  pronounced 
by  the  court  do  not  provide  that  tho  periods  of  imprison- 
ment under  thojio  convictions  arc  to  commence  at  any  futuro 
period  or  after  tho  expiration  of  tho  period  ment'.oncd  in 
tho  former  judgment.  This  omission  is  fatal  to  any  impris- 
onment which  ex(!eeds  that  of  a  single  sentence.  The  law 
is  well  settled  that  in  a  criminal  case  there  is  no  error 
in  a  judgment  making  one  term  of  imprisonment  commence 
when  another  terminates,  and  when  this  forms  part  of  tho  sen- 
tence, tho  judgment  is  then  considered  sutllciently  certain  as  to 
the  time  wlum  the  successive  sentences  are  to  bo  carried  into 
oxecution.  Hex  v.  Wilkes,  4  Burr.,  2577-8;  Kite  v.  Common- 
we:il!h,  11  ^tetc,  5S5;  lite  Commonwealth  v.  Lmth,  1  Va.  Cases, 
151. 

It  was  contended  at  the  argument  that  the  commitment 
might  bo  resorted  to  as  part  of  the  record  for  tho  purpose  of 
justifying  the  imprisonment  beyond  the  first  conviction,  and  it 
was  sought  to  fjive  elTect  to  a  memorandum  on  the  commit- 
ments that  they  were  to  lake  effect  after  each  other.  In  tho 
lirst  place,  it  is  a  rule  that  all  process  after  judgment  must 
strictly  pursue  tho  hitter.  A  mittimus  is  merely  to  furnish  tho 
olficor  to  whom  it  is  directed  a  justilication  for  the  detention 
;)f  the  prisoner.  It  cannot  be  used  to  control  or  vary  the  judg- 
ment, which  is  tlie  only  matter  that  can  be  carried  into  effect. 
So  that  oven  if  this  memorandum  wei'o  embodied  in  tho  com- 
mitment, it  could  have  no  effect,  for  the  reason  that  more 
|)rocess  can  never  be  resorted  to  for  the  i)urpose  of  enlarging 
what  the  court  has  solemnly  adjiid;;'ed.     The  sentences  in  tho 


570 


AMERICAN  CRIMINAL  REPORTS. 


Second  and  third  cases  do  not  state  that  each  imprisonment  is 
to  commence  from  and  after  the  expii-ation  of  tlie  imprison- 
ment in  those  which  precctled,  and  that  important  modification 
coukl  not  be  added  by  a  memorandum  on  the  process. 

Tlie  order  dismissing  the  writ  must  bo  reversed,  and  as  the 
rchitor  hr.o  undergone  confinement  for  the  full  period  of  a 
single  sentence,  ho  must  be  discharged  from  further  custody. 

Note. —  A  judgment  of  conviction  on  two  separate  indictments  which 
read:  "  It  is  considered  by  the  court  that  the  prisoner  bo  confined  in  the 
jail  and  ponitentiiuy  house  of  tliis  coniuionwealth,  to  luud  luUn-,  for  tlio 
space  of  five  years  ui)on  each  indictment,"  it  was  licld  that  the  legal  effect  of 
the  jn.l;^mcnt  was  that  the  prisoner  should  he  confmod  only  for  five  years; 
that  such  confinement  shouhl  be  upon  each  indictment,  and  that  both  ternw 
of  five  years  should  commence  and  terminate  at  the  same  time. 

In  Miller  v.  Allen,  11  Iiid.,  ysi),  tlie  petitioner  wiis  sentenced  to  imprison- 
ment in  the  state  prison  for  two  years  in  each  of  two  several  indi(  tinents. 
It  was  hi'Id  t)i:it  botli  terms  commenceil  and  run  concurrently.  It  was  licld 
in  that  case,  and  also  in  Ex  parte  Mct/crs,  44  Mo.,  270,  that  in  the  absence  of 
statutory  provision  authorizing  it  to  be  done,  tlie  couits  liave  no  autiiority 
to  order  a  term  of  imprisonment  in  the  penitentiary  to  commence  at  the 
exi)iration  of  another. 

If  a  prisoner  is  held  under  a  le,::;al  and  valid  commitment,  tlie  illegality  of 
other  commitments  need  not  be  considered  until  his  term  of  service  under 
the  valid  commitment  has  expired.    Ex  parte  Uijnn,  17  Nev.,  i;J9. 

Verdict,  "tlie  Juiy  found  defendant  guilty  of  an  assault  with  a  deadly 
weniion,  to  indict  a  bodily  injury,"  etc.  Held,  thiAt  the  omission  of  th(!  words 
"  witli  intent"  after  the  word  "  weapon"  did  not  invalidate  the  inJictmont. 
Slate  V.  Colhjcr,  17  Nov.,  275. 


IlouixsoN  V.  State. 

(38  Ark.,  518. "» 

Sunday:  Judicial  notice  of  day  of  urcJ:  or  month. 

1.  Tlio  courts  take  judicial  notice  of  the  day  of  the  week  a  certain  day  of 

the  month  came  on. 

2.  Sauuatii  iiREAKiNa  —  Indictmknt  Fon.— The  charging  p.-irt  of  an  in- 

dictment for  Sabbath  breaking  must  show  that  the  olfenso  wa:i  com- 
mitted on  some  Suad.ay,  tlum;^h  the  particular  Sunday  is  not  important 

Error  to  Pope  Circuit  Court.    Hon.  W.  D.  Jucoway,  Circuit 
Judge. 

C.  Jj.  Moore,  attornoy-gonoral,  for  appellant. 


DREES  V.  THE  STATE. 


571 


Eaictx,  J.  Tlio  indictment  in  this  case  was  not  good  and  tho 
demurrer  should  have  been  sustained.  Tlic  courts,  judicially, 
know  tliat  tho  12th  day  of  Js'ovember,  1880,  was  a  Friday. 

It  was  not  a  misdemeanor  for  a  licensed  vendor  to  sell 
whisky  on  that  day.  The  charging  part  of  tho  indictment 
should  have  shown  that,  on  some  Sunday,  ho  did  the  act  con- 
stituting the  offense,  although  the  particular  Sunday  was  not 
important.  Tho  designation  of  the  crime  in  the  commence- 
ment is  merely  prefatory,  and,  to  bo  valid,  must  bo  sui)ported 
by  tho  charging  portion.  It  is  not  charged  that  tho  defendant 
sold  liquor  on  any  Sunday  at  all. 

Reverse  and  hold  for  naught. 


Dress  v.  The  State. 

(37  Ark.,  122.) 

TRE'iVASS:  Partition  fencs. 

Trespass  —  BuEAKixa  PAUTrrioN  fenck.— A  person  cannot  bo  convicted  of 
niisdcinoanor  for  knocking  a  board  oil  of  a  partition  fence,  between 
tho  lots  of  himself  an  1  tho  pvosoiuting  witness,  and  tho  common  prop- 
erty of  botli.  But  it  seems  that  to  pull  down  and  destroy  it  would  be 
criniiiud  trespiuss. 

Appeal  from  Pulaski  Circuit  Court.  lion.  J.  "W.  Martin, 
Circuit  Judge. 

C.  B.  Moore,  attorney-general,  for  appoUco. 

IIaijkisom,  J.  This  was  a  prosecution  under  the  act  of  Jan- 
uary 21,  1875,  to  protect  inclosures  from  trespasses. 

The  act  declares,  "  That  if  any  person  shall  ride,  range  or 
hunt  within  tho  inclosed  grounds  of  another,  without  tho  con- 
sent of  the  owner  previously  obtained,  or  shall  pull  down  or 
break  the  fence,  or  leave  open  the  gate  of  the  farm,  plantation 
or  other  inclosed  grounds  of  another,  the  party  so  offending 
shall  be  guilty  of  a  misdeuioanor,  and,  upon  conviction  thereof 
before  a  justice  of  peace,  or  other  court,  liaving  jurisdiction  of 
such  offense,  shall  bi^  (iiu'd  in  any  sum  not  less  than  ten  dollars 
nor  inoro  than  one  liumbed  dolhirs.  and,  in  default  of  the  pay- 


AMEKK  AN    ClilMlNAL  KEPORTo. 


r  1% 

I 


mont  of  such  line,  sluill  b»  imprisoned  in  tlio  county  jail  not 
less  than  ten  nor  more  than  tiiirty  clays." 

The  evidence  showed  that  the  fence  tho  defendant  was 
charged  with  breaking  was  the  partition  fence  between  tho 
lots  of  himseli;  and  DemaT-sh,  the  prosecuting  witness,  and  tho 
common  property  of  them  both. 

Having  the  same  right  in  the  fence,  and  equal  power  and 
control  over  it,  with  Demarsh,  ho  did  not  commit  a  trespass  in 
knocking  oif  the  plank  Demarsh  had  added  to  it.  2  Hill  on 
Torts,  277;  Cooloy  on  Torts,  327;  Freem.  on  Coten.  and  Part., 
sees.  208,  299;  Cuhltt  v.  Putin,  8  Barn.  &  Cross.,  257;  Bennett 
V.  Bulloch,  35  Penn.  St.,  301. 

Had  he,  however,  pulled  down  and  dosti'oyed  tho  fence,  such 
destruction  of  the  common  i)roperty  would  liavc  boon  a  tres- 
pass, but  we  are  not  callerl  ui)on  to  say  wliotlicr  he  would  havo 
been  liable  to  an  indictment  or  prosecution  therefor. 

As  the  fence  was  common  property  of  tlie  defendant  and 
Demarsh,  the  (hiding  of  the  court  that  it  was  broken  by  tho 
defendant  witliout  the  consent  of  tlio  owner  was  not  sustained 
by  the  evidence. 

Tho  judgment  is  rovei'sed  and  tho  caur.e  is  remanded,  with 
instructions  to  grant  the  defendant  a  now  trial. 


The  Statk  v.  HAnTNETT. 


(75  Mo.,  251.) 
Venue:  Kvidcuce  —  Rape. 

1.  Vexce  siust  be  provei)  as  i-.VTi)  IN  THE  INDICTMENT.— No  principlo  is 

better  settled  than  tliat  in  a  (TJminal  ciuw  the  venue  must  he  jiroved  aa 
laid  in  the  indictment.  It  is  as  in)])()i-tant  to  prove  that  the  olTense  waa 
committed  in  tiie  county  where  it  in  chargoJ  to  havo  been  committed, 
as  to  prove  that  the  defendant  committed  it. 

2.  Evidence  —  Puoof  ok  vknue. —  Proof  of  vonut',  like  any  other  fart,  may 

be  proved  by  direct  or  indirect  evidence,  but  it  must  bo  cstablislicd 
eitlier  by  the  on(*  or  tlie  other. 
8.  Same  —  Rape.—  Prosecutrix  may  be  interro;;ated  oh  to  her  object  In  go- 
ing to  tlie  place  where  tlus  rape;  wiw  alleged  to  havo  l»eea  committoJ. 

From  Colo  Circuit  Court.     Hon.  E.  L.  Edwards,  Judge. 


I 


THE  STATE  v.  HAltTNETT. 


573 


Belch  tfi  Silver  and  J^iohiff  d;  TTongh,  for  appellant. 
D.  II.  IIcLityre,  atloi-ney-goiieral,  for  the  state. 

.  Norton,  J»  Defendant  was  indicted  in  the  Cole  county 
circuit  court  at  its  December  term,  1S81,  charged  with  the 
crime  of  rape.  Upon  this  indictment  he  was  tried  and  con- 
victed, and  brings  the  case  here  by  appeal,  assigning  among 
others,  as  a  reason  for  reversing  the  judgment,  th.\t  the  record 
failed  to  show  that  the  offense  charged  was  committed  in  Cole 
county. 

No  principle  is  better  settled  than  that  in  a  criminal  case 
the  venue  must  be  proved  as  laid  in  the  indictment,  and  that  in 
order  to  a  conviction  it  is  as  im))ortantto  prove  that  the  offense 
was  committed  in  the  county  where  it  is  charged  to  have  been 
committed,  as  to  prove  tiiat  the  defendtmt  committed  it.  This 
fact,  like  any  otiier,  may  be  established  either  by  direct  or  in- 
diiect  evidence,  but  it  must  be  estal)lislied  either  by  one  or  the 
other  of  tlieso  methods.  After  a  careful  examination  of  the 
bill  of  exceptions,  we  fail  to  iind  either  direct  or  indirect  evi- 
dence of  the  fact  that  the  crime  charged  was  committed  in 
Cole  county,  the  evidence  introduced,  as  shown  by  the  record, 
only  tending  to  prove  that  the  offense  was  committed  near 
Scott's  station.  There  was  no  evidence  that  Scott's  station 
was  in  Cole  county.  As  the  fact  of  venue  is  always  suscepti- 
ble of  direct  proof,  it  may  have  been  made  in  this  case,  but  if 
so,  the  record  before  usUipon  which  we  alone  can  act),  Avhether 
through  inadvei'tence  or  otherwise,  fails  to  disclose  it,  and 
under  authority  of  the  case  of  The  State  v.  Ihujhes,  71  Mo., 
(i33,  the  record  in  which  case  is  similar  to  the  one  in  this,  the 
judgment  will  be  reversed  and  cause  remanded. 

It  is  proper  to  state,  as  the  cause  will  be  retried,  that  while 
I  do  not  think  error  was  committed  l)y  the  court  in  refusing  to 
allow  the  ])rosecuting  witness  to  state,  in  answer  to  a  question 
asked  by  defendant's  counsel,  what  was  her  object  in  going  to 
Scott's  station,  a  nuijority  of  the  coui't  are  of  opinion  that  the 
([uestion  was  a  pi-oper  one  aiul  that  the  witn(>ss  ought  to  have 
been  permitted  to  answer  it. 

Except  in  the  particulars  nientioru'd  the  cause  seems  to 
have  been  fairly  and  properly  tried.    All  concur. 


574 


AJIERICAN  CRIMINAL  KEPOKTS. 


TKKBiTOKy  V.  An  "Waii  and  Aii  Yen, 

(4  Mont.,  149.) 

Verdict:  Jh/v/ — \Vnircr. 

1.  Verdict  OF  eleven  persons  in  capital  cask  a  nullity. —  Tlio  consti- 
tution guaranties  a  jury  of  twelve  men,  the  common  law  jury,  and  tho 
right  to  be  tried  for  crime  by  a  jury  of  that  number  is  not  a  mere  privi- 
lege of  the  prisoner,  but  a  legal  re(iuu'ement,  which  cannot  be  changed 
by  tho  consent  of  tho  prisoner.  Tho  verdict  of  eleven  jurymen  in  a 
capital  case  is  a  mere  nullity,  and  any  judgment  rendered  thereon 
against  the  prisoner  is  witliout  jurisdiction  and  void. 

From  First  District,  Madison  County. 

ArmMrong  <&  Toole,  for  respondent. 
Blake  t5  Calloway,  for  appellants. 

Wade,  C.  J.  This  is  an  indictment  for  murder.  During  tho 
progress  of  the  trial  one  of  the  jurymen  was  excused  on 
account  of  sioknoss  in  his  family,  and  thereupon,  with  thecon- 
Bcnt  of  the  defendants,  the  trial  proceeded  to  a  linal  conclusion 
before  the  remaining  eleven  jurymen,  who  returned  into  court 
a  verdict  against  tho  defendants  of  murder  in  the  first  degree. 
Had  the  defendants,  with  tho  consent  of  the  ])rosecution  and 
the  court,  in  a  capital  case,  tho  right  or  authority  to  waive  a 
trial  before  a  jury  of  twelve  men?  A  common  law  jury  con- 
sists of  twelve  persons.  That  is  tho  jury  secured  and  guaran- 
tied by  tho  constitution.  ]>y  the  law  of  the  land  twelve  per- 
sons form  a  ]iart  of  the  tribunal  before  whom  a  defendant 
charged  with  a  capital  crime  is  to  be  tried.  Can  a  defendant 
on  his  own  motion  change  the  tribunal  and  secure  to  himself 
a  trial  before  a  jury  not  authorized  by  and  unknown  to  tho 
law?  "We  know  of  no  authoi'ity  authorizing  anything  of  the 
kind  in  a  capital  case.  Tnstanc<\s  may  bo  found  in  tho  books 
in  cases  of  misdemeanors,  and  also.  l)ut  more  rarely,  in  cases 
of  felonies,  where  it  has  been  held  that  a  defendant  might 
waive  his  right  to  a  jur}'  of  twelve  and  consent  to  be  tried  by 
a  less  number,  but  the  weight  of  authority  in  cases  of  felony  is 
clearly  against  the  proposition.  The  law  has  established  cer- 
tain tribunals,  with  defines]  powers  and  forms  of  proceedings, 
for  the  trial  of  persons  chaigc d  with  eritne.  Security  to  tlu^ 
defendant  and  to  the  j)ubli(;  is  only  found  in  a  strict  compliance 


TERRITORY  v.  AH  WAH  AND  AH  YEN. 


575 


^ 


with  tho  law  of  the  land.  Jurisdiction  comes  by  following 
the  law.  Disorder  and  uncertainty  follow  a  departure  there- 
from. Neither  the  prosecution  nor  the  defendant,  by  any  act 
of  tlieir  own,  can  change  or  modify  the  law  by  which  criminal 
trials  arc  controlled.  If,  with  the  consent  of  the  court  and  tho 
prosecution,  the  defendant  may  have  a  trial  with  one  juryman 
less  than  a  constitutional  jury,  why,  with  like  consent,  might 
he  not  have  a  trial  with  one  juryman  more  than  a  constitutional 
jury  ?  If  by  his  own  act  the  defendant  might  take  one  from  a 
lawful  jury,  we  do  not  see  why  he  might  not  add  one  thereto. 
In  either  case  there  would  bo  a  failure  of  jurisdiction,  because 
jurisdiction  aLiaches  to  and  makes  valid  a  verdict  when  ren- 
dered by  a  jury,  and  a  jury  is  twelve  men.  In  civil  actions  tho 
statute  expressly  provides  that  in  case  a  jurynum  becomes  sick 
and  is  excused,  the  trial,  with  the  consent  of  the  parties,  may 
proceed  before  the  remaining  eleven  jurymen;  but  even  in  civil 
actions  this  could  not  bo  done  except  by  virtue  of  a  statute  au- 
thorizing it,  and  hence  the  statute  was  enacted.  In  the  absenco 
of  a  statute,  consent  would  not  confer  jurisdiction.  By  tho 
consent  of  the  court,  prosecution,  and  defendant,  a  criminal 
trial  ought  not  to  be  converted  into  a  mere  arbitration. 

In  the  case  of  Caucemi  v.  People,  18  N.  Y.,  130,  the  court 
says:  "Criminal  prosecutions  involve  public  wrongs,  a  broach 
of  public  rights  and  duties  which  affect  the  whole  comnumity, 
considered  as  a  community  in  its  social  and  aggregate  capacity. 
3  Bl.  Comm.  (2d  ed.),  45.  The  end  they  liavc  in  view  is  tho 
prevention  of  similar  offenses,  not  atonement  or  expiation 
f(,.  crime  committed.  Id.,  11.  The  penalties  or  punisliments, 
for  tho  enforcement  of  wliich  they  are  a  moans  to  the  end,  are 
not  within  the  discretion  or  control  of  the  parties  accused;  for 
no  one  has  a  riglit,  by  his  own  voluntary  act,  to  surrender  his 
liberty,  or  part  with  his  life.  Tiie  state,  the  public,  have  an 
interest  in  the  preservation  of  the  lil)erties  find  lives  of  tho 
citizens,  and  will  not  allow  them  to  be  taken  away  '  without 
due  process  of  law'  (Const.,  art.  1,  §  0),  wlien  forfeited,  as  they 
may  be,  as  a  punishment  for  crimes.  Criminal  prosecutions 
proceed  on  the  assumption  of  such  a  foi-feiture,  which,  to  sus- 
tain them,  must  bo  ascertained  and  declared  as  the  law  has 
prescribed.  .  .  .  These  considerations  make  it  apparent 
t  !iat  the  right  of  a  defendant  in  a  criminal  prosecution  to  affect, 


670 


AMERICAN  CRiailNAL  REl'ORTS. 


j|.^:i.i ';.?%..■ 


by  consent,  tlic  conduct  of  the  caso,  sliould  bo  much  more  lim- 
ited in  civil  actions.  It  should  not  be  permitted  to  extend  so 
fill' as  to  work  radical  changes  in  great  and  leading  provisions 
as  to  the  organization  of  the  tribunals,  or  the  mode  of  proceed- 
ing prescribed  by  the  constitution  and  the  laws.  Effect  may 
justly  and  safely  be  given  to  such  consent  in  many  particulars, 
and  the  law  does,  in  respect  to  various  matters,  regard  and  act 
upon  it  as  valid.  Objections  to  jurors  may  be  waived;  the 
court  may  be  substituted  for  triers  to  dispose  of  challenges 
to  jurors;  secondary,  in  place  of  primary,  evidence  may  be 
received;  admission  of  facts  are  aUowed;  and  in  similar  par- 
ticulars, as  well  as  in  relation  to  mere  formal  proceedings  gen- 
erally, consent  will  render  valid  what,  without  it,  would  l)e 
erroneous.  .  .  .  But  when  issue  is  joined  upon  an  indict- 
ment, the  trial  must  be  by  the  tribunal  and  in  the  mode  which 
the  constitution  and  laws  provide,  without  any  essential  change. 
The  public  ollicer  prosecuting  for  the  people  has  no  autiiDvity 
to  consent  to  such  a  change,  nor  has  the  defendant.  Ap})ly'!".g 
the  above  reasoning  to  the  present  case,  the  conclusion  neces- 
sarily follows  that  the  consent  of  the  plaintiff  in  error  to  the 
withdrawal  of  one  juror,  and  that  the  remaining  eleven  might 
render  a  verdict,  could  not  lawfully  be  recognized  by  tiie  court 
at  the  circuit,  and  was  a  nullity.  If  a  ditference  of  one  juror 
might  be  waived,  there  appears  to  bo  no  good  reason  why  a 
dcliciency  of  eleven  miglit  not  be;  and  it  is  diHicult  to  say 
why,  upon  the  same  principle,  the  entire  jianel  might  not  b(^ 
dispensed  with,  and  the  trial  committed  to  tJie  lowrt  alone.  It 
would  be  a  highly  dangerous  innovation  in  reference  to  crimi- 
nal cases,  upon  the  ancient  and  invaluable  instituti(m  of  trial 
by  jury,  and  the  constitution  and  laws  establishing  and  secur- 
intr  that  mode  of  trial,  for  the  court  to  allow  of  any  number 
short  of  a  full  i)anelof  twelve  jurors,  and  wo  think  it  ought  not 
to  be  tolerated." 

In  the  case  of  Sfnfc  v.  M<f>}>ffrfVff,  41  Mo.,  470,  Wagner,  ,1.. 
says:  "  A  jury  must  consist  of  twelve -men, —  no  more,  no  less; 
no  other  number  is  known  to  the  law, —  and  they  Tuust  appear 
upon  the  record  to  have  rendered  their  verdict.  Jii',r  v.  Sf. 
Michaels,  2  Hlack.,  TM>;  Di.ron  r.  U'lchnnh,  2  llow.,.  771 ;  Jiwh- 
Hon  V.  Sfot(\iS  P.lackf.  (Md.),  4*!l;  Bi'innt  v.  Sfatc.  f^  liiackf., 
601.     '  The  petit  jury,' says  Chitty, 'must  consist  of  pre(!isely 


TERRITORY  v.  AH  WAH  AND  AH  YEN. 


57t 


twelve,  and  is  never  to  be  more  or  less,  and  this  fact  it  is  neces- 
sary to  insert  upon  the  record.  If,  therefore,  the  number  re- 
turned be  le.5S  than  twelve,  any  verdict  must  be  ineffectual,  and 
the  judgment  will  be  reversed  on  error.'  1  Chit.  Crim.  Law., 
505." 

After  commenting  upon  the  reasons  given  in  the  case  of 
Cancemi  v.  People,  Kupra,  Judge  Wagner  furtlier  says:  "An- 
other good  and  sufficient  reason,  it  occurs  to  us,  is  that  the 
prisoner's  consent  cannot  cliange  the  law.  His  riglit  to  b(i 
tried  by  a  jury  of  twelve  men  is  not  a  mere  privilege;  it  is  a 
positive  requirement  of  the  law.  He  can  unquestionably  waive 
many  of  his  legal  rights  and  privileges.  He  may  agree  to 
certain  facts,  and  dispense  with  formal  proofs;  he  may  c(msent 
to  the  introduction  of  evidence  not  strictly  legal,  or  forbear  to 
interpose  cliallenges  to  the  jurors;  but  he  has  no  power  to  con- 
sent to  the  creation  of  a  new  tribunal,  unknown  to  the  law,  to 
try  his  offense.  The  law,  in  its  wisdom,  has  declared  what 
shall  be  a  legal  jury  in  the  trial  of  criminal  cases;  that  it  shall 
be  composed  of  twelve;  and  defomlant,  when  he  is  upon  trial, 
cannot  be  ])ei'mittcd  to  change  the  law,  and  substitute  another 
and  a  ditrcrent  tribunal  to  pass  upon  his  guilt  or  innocence. 
The  law  as  to  criminal  ti'ials  should  be  based  upon  fixed  stand- 
ards, and  should  be  clear,  delinite  and  absolute.  If  one  juror 
can  be  withdrawn  there  is  no  reason  why  six  or  eight  may  not 
be,  and  thus  the  accused,  through  persuasion  or  other  causes, 
may  have  his  life  ])iit  in  jeopardy,  or  deprived  of  his  liberty 
throutrh  a  bodv  constituted  in  a  uumner  unknown  to  the  law. 
Aside  from  the  illegality  of  such  a  procedure,  public  policy 
condemns  it.  The  prisoner  is  not  in  a  condition  to  exercise  a 
free  and  iiulependent  choice  without  often  creating  prejudice 
against  him.'" 

In  Hill  V.  People,  10  Mich.,  357,  the  court  says:  "The  true 
theory,  we  think,  is  that  the  po()])1e.  in  their  political  or  sov- 
ereign capacity,  assume  to  provide  by  law  the  pro])er  tribunals 
and  modes  of  trial  for  offenses,  without  consulting  the  wishes 
of  the  defendant  as  such ;  and  upon  them,  therefore,  devolves 
the  responsibility,  not  only  of  enacting  such  laws,  Init  of  carry- 
ing them  into  effect,  by  furnishing  the  tribunals,  the  panels  of 
jurors,  and  other  safeguards  for  his  trial,  in  accordance  Avith 
the  constitution,  which  secures  his  rights.  The  government, 
VoL.IV-37 


578 


AMERICAN  CRimNAL  REPORTS. 


'Wi- 


the  officers  of  the  law,  bring  the  jurors  into  tlio  box ;  he  has 
no  control  over  the  matter  who  shall  be  summoned  or  c(mipos(^ 
the  panel,  upon  Aviiich  ho  may  exercise  the  vi<rlit  «)f  chullouf^c; 
and  the  prosecution  must  see  that  electors  only  arc  placed 
thereon,  as  the  law  rccjuires.  But  independent  of  all  theories, 
and  as  a  practical  question,  wc  think  there  would  bo  great  dan 
ger  in  hohling  it  comiwtont  for  a  defendant  in  a  crriniinal  case, 
by  waiver  or  stipulation,  to  give  authority  Avliich  it  could  not 
otherwise  possess,  to  a  jury  of  less  than  twelve  men  for  liis  trial 
and  conviction;  or  to  deprive  himself  in  any  way  of  the  safe- 
guards whicli  the  constitution  luis  provided  him,  in  the  unani- 
mous agi'eement  of  twelve  men,  qualified  to  serve  as  jurors  by 
the  general  laws  of  the  land.  Let  it  once  he  settled  that  a 
defendant  may  thus  waive  his  constitutional  rights,  and  no  one 
can  foresee  the  extent  of  the  evils  which  might  follow ;  but  the 
whole  judicial  history  of  the  past  must  admonish  that  very  seri- 
ous evils  shouhl  lx>  apprehended,  and  that  every  step  taken  in 
that  direction  would  tend  to  increase  the  danger.  One  act  or 
neglecjt  might  lie  recognized  as  a  waiver  in  one  case,  and 
another  in  another,  until  the  constitutional  safeguards  might 
be  sulxstantially  frittered  away.  Tlie  only  safe  course  is  to 
meet  the  danger  in  litiilnr,  and  prevent  tlic  first  step  in  tlx! 
wrong  direction.  It  is  the  duty  of  courts  to  see  that  the  con- 
stitutional rights  of  a  defendant  in  a  criminal  case  shall  not  1»(^ 
violated,  however  negligent  he  may  be  in  raising  the  objection. 
It  is  in  such  cases,  empliatically,  that  consent  sliould  not  be 
allowed  to  give  jurisdiction."  J^ee,  also.  Peaiile  v.  (fJVetf,  4H 
Cal.,  25S;  Carpenter  r.  /Sfatc,  4  llow.  (Miss.),  1(»3;  Jar/,sfm  r. 
State,  0  Blackf.,  4G1;  Brmrn  r.  Staf(\  10  Ind.,  49fi;  Boiclen  v. 
State,  5  8nocd  (Tenn.),  SOO;  Bell  r.  State,  44  Ala.,  J'.O.'J;  WUh'ams 
V.  Stat<>,  12  Ohio  St.,  i\±l;  AUm  v.  State,  54  Ind.,  4(51 ;  1  liisli. 
Orim.  Proc,  §  701;  Protf.  Jur.,  §  113;  State  v.  MeCleai',  11 
Nov.,  :?(>,  (50. 

The  opiKJsition  to  these  authorities  is  that  of  State  v.  Kauf- 
man, 51  lowii,  57s  {S.  C,  2  X.  W.  Hep.,  275),  whore  it  is  held 
that,  upon  a  trial  for  crime,  the  dcfcnchmt  may  waive  his  right 
to  a  trial  l»y  a  jury  of  twelve  men,  and  with  his  consent  may 
be  tried  before  eleven  jurors.  This  decision  cites  for  its  sujv 
port  the  cases  of  Com.  v.  Dailcy,  12  Cush.,  80;  Murphy  v.  Com.'' 
I  Mete.  (Ky.),  305;  lyra  v.  Same,  2  Mete,  1;  which  caseawcro 


BURKE  V.  THE  STATE. 


579 


;  ho  has 

C()lnpoS(^ 

c  placed 
tlicorios, 
I'CJit  dan 
inal  case, 
jould  not 
I'liis  trial 
the  safe- 
lie  unani- 
jurors  by 
d  that  a 
id  no  one 
;  but  the 
very  seri- 
takon  in 
10  act  or 
*ase,  and 
ds  might 
rse  is  to 
}p  in  tli(! 
t  the  con- 
ill  not  1)(^ 
:)bjcction. 
d  not  be 
rjVeU,  4H 
acl'mn  v. 
Boxcles  r. 
WiUlamn 
;  1  Bish. 
Cleav,  11 

•:  V.  Kavf- 
it  is  held 
■  his  right 
sent  may 
ar  its  sujv 
yv.  Com.-' 
laseswcrc 


misdemeanors,  and  expressly  limit  their  application  to  misde- 
meanors only,  and  therefore  cannot  properly  be  cited  as  author- 
ity in  cases  of  felony,  and  especially  not  in  capital  cases.  Wo 
therefore  hold  that  the  court  erred  in  permitting  the  trial  to 
proceed  to  a  verdict  after  the  withdrawal  of  one  of  the  twelve 
jurors.  The  verdict  of  eleven  jurymen  in  a  capital  case  is  a 
more  nullity,  and  any  judgment  rendered  thereon  against  the 
defendants  is  without  jurisdiction,  and  void. 

This  conclusion  renders  it  unnecessary  for  us  to  consider  any 
of  the  other  questions  presented  in  the  argument  of  counsel. 

Reversed  and  remanded. 


BuRKK  v.  The  State. 

(66  Ga.,  157.) 

WrrNESSEs:  ^rrcsi  o/ — Forgery, 

1.  Brevity  and  un'ceiitainty  of  forcjed  instrument  no  bar  to  convic- 
tion.—  For  forging  iin  instrument  in  these  terms :  "  George,  let  the  boy 
luive  $2  worth  of  wliat  ho  wants,"  an  indictment  will  lie;  the  other  con- 
stituents of  forgery  concurring,  the  brevity  and  uncertainty  of  this 
instrument  will  not  prevent  a  conviction.  Such  paper  was  not  inad- 
missible in  evidence  on  account  of  uncertainty. 

L'.  Arrest  of  defendant's  witnesses  in  presence  of  jury.— It  is  error 
for  the  court  to  order  the  arrest  of  the  defendant's  witnesses  in  the 
presence  of  the  jury  before  whom  they  have  just  given  their  testimony, 
.and  to  have  them  then  and  tliere  arrested  on  account  of  what  they 
liave  testified.  To  do  so  amounts  to  an  intimation  from  the  bench  that 
their  evidence  is  faJse. 

Before  Judge  Ilillyer.    Fulton  Superior  Court. 

L.  J.  Gk'nn  cfe  Son  and  E.  A.  Angler,  for  plaintiff  in  error. 
H.  II.  Hill,  Jr.,  solicitor-general,  by  brief,  for  the  state. 

(JuAWFortn,  Justick.  The  plaintiff  in  error  was  indicted  in 
Fulton  superior  court  for  forgery  and  counterfeiting,  and  on  a 
second  count  with  uttering  and  publishing  as  true  a  certain 
forged  order,  of  which  the  following  is  a  copy : 

"  George,  please  let  the  boy  have  $2  worth  of  what  he  Avants. 

"  October  the  1st,  1878.  W.  C.  Peck." 


5S0 


AMERICAN  CRIMINAL  REPORTS. 


1.  The  defendant  demurred  to  the  indictment  upon  tlie 
groiinl  tiiat  the  order  wliich  was  charged  as  a  forgery  was  so 
incoiuploto  and  imperfect  that  no  one  couhl  have  been  de- 
frauded by  it,  and  no  recovery  could  have  been  had  upon  it  by 
suit.  The  court  overruled  the  demurrer,  and  this  constitutes 
the  first  assignment  of  error.  This  ruling  of  the  court  was 
fully  sustained  and  covered  bj'  the  decision  in  the  case  of  John- 
son V.  The  State,  G2  Ga.,  299. 

2.  The  second  objection  to  the  ruling  of  the  court  was  in 
admitting  in  evidence  the  order  itself  to  the  jury,  which  we 
hold  was  legal. 

3.  Because  the  court  erred  in  commanding  the  sheriff  to  iw- 
rest  Ed.  Martin,  Bcttie  l\rartin  and  Elizabeth  Ward,  matciTil 
witnesses  for  the  defendant,  in  this,  that  the  order  of  an'(>st 
was  given  in  the  presence  and  hearing  of  the  jujy,  and  said 
arrest  being  made  in  the  presence  of  the  jury  trying  the  case, 
said  arrest  being  made  because  of  the  evidence  just  given  in 
by  said  witnesses,  and  such  arrest  tending  to  throw  discredit 
upon  their  testimony  to  defendant's  injury. 

This  ground,  when  aiudyzed,  states  that  after  these  wit- 
nesses had  testified  the  court  commanded  the  sheriff  to  avrent 
them,  and  that  the  order  to  arrest  was  given  in  the  presence 
and  hearing  of  the  jury,  and  that  the  arreM  was  made  in  the 
presence  of  the  jury,  an<l  made  because  of  the  evidence  just 
given  in  by  them.  The  defense  of  the  accused  rested  u})on  an 
alU)'i',  these  witnesses  liad  just  sworn  to  its  truth;  whether  it 
was  so  or  not  must  rest  alone  with  the  jury. 

Tlie  iiilluence  and  power  of  a  j.ist  and  upright  judge  over 
the  minds  of  jurors  in  his  court,  jointly  trying  with  liimseH" 
the  guilt  or  innocence  of  a  party  charged  with  crime,  is 
scarcely  to  be  estimated.  Indeed,  in  all  cases,  to  their  cr<'dit 
bo  it  s[)oken,  they  listen  with  attention  to  his  utteranc<'s,  and 
endeavor  to  follow  what  tlHjy  conceive  to  be  his  views  of  the 
justice  of  the  particular  cause  before  them.  Hence,  our  law 
provides  that  if  a  judge,  during  the  progress  of  a  case,  or  in 
his  charge  to  the  jury,  shall  exjn'ess  or  intimate  his  opinion  as 
to  what  has  or  has  not  been  proved,  or  as  to  the  guilt  of  the 
accused,  then  a  new  trial  shall  be  granted.  We  think  that  the 
arrest  of  witnesses  who  had  just  testified  for  the  defendant, 
under  the  circurastancos  stated  in  the  bill  of  exceptions,  and 


BURKE  V.  THE  STATE. 


581 


which  arc  testified  to  be  true  by  the  judge,  is  such  an  expres- 
sion of  o})inion,  not  only  as  to  what  had  been  proved,  Init  also 
as  to  the  guilt  of  the  accused,  as  to  bring  this  case  within  the 
meaning  of  section  3248  of  the  code,  and  therefore  we  are  re- 
(juired  to  grant  a  new  trial  therein. 

Judgment  reversed. 

Note.— In  The  People  v.  Wolcott,  51  Mich.,  613,  one  George  Harrison,  a 
witnesH  for  the  defendant,  wa.s  asked,  on  cross-examination,  whetlier  ho  had 
ever  been  arrested,  and  whether  he  did  not  know  there  w.as  a  wai'rant  out 
for  him,  and  whether  he  did  not  know  that  the  slicriff  had  such  a  warrant 
then.    The  record  then  proceeds  as  follows: 

Counsel  for  Respondent:  "What  did  you  insinuate  that  for?" 

Prosecuting  Attorney :  "  It  is  true." 

The  witness  then  left  the  stand,  and  was  immediately  arrested  by  the 
sheriff  in  court,  in  presence  of  the  jury,  and  taken  to  jail. 

Cimnsel  for  Respondent  to  the  Court:  "I  would  like  to  know  what  kind 
of  a  performance  this  is,  for  the  sheriff  to  take  my  witness  out  of  the  court 
r<K)m." 

The  Cotirt :  "  You  excused  liim  from  the  stand,  and  he  said  he  had  a  wiu:- 
rant  for  him,  and  he  took  him  on  the  warrant." 

Counsel  for  ResiKUident :  "  I  supposed  I  had  a  right  to  liave  him  here."  By 
direction  of  the  court  he  was  produced  in  custody  of  the  sheriff. 

Mr.  Justice  Cooley,  speaking  for  the  court,  says :  "  It  is  very  plain  that  the 
court  iierceived  the  wrong  of  this  theatrical  arrest,  and  its  necessary  tend- 
ency to  prevent  justice,  and  it  is  to  be  regretted  that  he  did  not  promjjtly 
and  decisively  rebuke  it.  No  one  can  feel  assured  that  a  trial  in  the  course  of 
which  such  a  transaction  can  take  place  has  })een  fair  or  just :  there  is  a 
suggestion  about  it  of  brow-beating  and  terrorism  that  may  have  affected 
witnesses  and  jurors  beyond  what  can  be  shown;  and  it  was  so  entirely  un- 
necessary to  any  proi)er  purpose  that  it  cannot  be  overlooked."  For  this  and 
other  improper  things  which  transpired  on  the  trial,  a  new  trial  was  gi-anted. 


582 


AMERICAN  CKIMINAl    REPORTS. 


RECENT  CROWN  CASES  RESERVED. 


The  Quken  v.  Manning. 

(12  Law  Rop.,  Q.  B.  Div.,  241.) 

CoNSPraACY  — Indictment  and  trial  op  two,  both  must  be  convicted 
OR  acquitted. —  Wlicre  twojicrsons  aro  indicted  for  conspiring  together 
and  they  are  tried  together,  both  must  be  ac(iuittcd  or  both  convicted. 

This  was  a  rule  obtained  on  behalf  of  the  defendant  Man- 
ning, calling  on  the  ])rosecutor  to  show  cause  why  the  verdict 
for  the  crown  should  not  bo  set  aside  and  a  new  trial  liad. 

An  indictment  was  ]>referred  against  the  defendants  Man- 
ning and  Ilannam  for  cons[)iring  togetiier  to  cheat  and  defraud 
the  prosecutor.  The  case  was  removed  by  certiorari  and  tried 
on  the  civil  side  at  the  last  summer  assizes  at  Winchester  before 
Lord  Coleridge,  C.  J.,  and  a  special  jury.  The  jury  wore  di- 
rected that  on  this  indictment  they  might  find  one  prisoner 
guilty  and  accpiit  the  other.  Th(>y  returned  a  verdict  of  guilty 
against  Manning,  but  were  unable  to  agree  as  to  Ilannam,  and 
were  discharged  from  giving  a  verdict.  Manning  was  put 
under  recognizance  to  surrender  to  receive  judgment  in  tlui 
queen's  bench  division,  and  the  trial  of  JIannam  was  postponed. 
This  rule  was  obtained  on  the  ground  of  misdirection. 

Matiikw,  J.  In  this  case  1  have  come,  after  considerable 
doubt,  and  I  confess  with  great  reluctance,  to  the  conclusion 
that  there  must  be  a  new  trial.  The  man  who  was  convicted 
had  a  perfectly  fair  trial,  and  a  summing  up  distinctly  in  his 
favor,  and  every  precaution  was  taken  which  could  be  taken 
to  ])revent  any  evidence  being  acted  on  by  the  jury  which 
could  not  be  legitimate  evidence  against  him.  Nevertheless, 
I  am  satisfied  by  the  argument  of  Mr.  Charles  that  there  is  an 
imperative  rule  of  law  which  should  have  prevented  my  lord 
froni  informing  the  jury,  as  he  did,  that  it  was  possible  in  such 
a  case  to  convict  one  of  the  men  and  to  acquit  the  other.  The 
rule  appears  to  be  this:  In  a  charge  for  consj^iracy  in  a  case 
like  this  where  there  are  two  defendants,  the  issue  raised  is, 
whether  or  not  both  the  men  are  guilty,  and  if  the  jury  are 


«■ 


Tnr;  queen  v.  manning. 


583 


not  satisfied  as  to  the  guilt  of  either,  thoji  both  must  be  ac- 
♦juittcd. 

In  Hex  V.  Cooke,  5  W  &  C,  538,  the  court  could  not  liavo  pro- 
nounced the  jud;,Muent  they  did  unless  they  had  assumed  the 
existence  of  the  rule.  So  in  Itog.  v.  Thompson,  10  Q.  B.,  832, 
it  appears  that  the  court  were  of  opinion  that  this  rule  ex- 
isted. The  authority  does  not  rest  there.  There  is,  in  addi- 
tion, a  ])assa<^e  in  the  judgment  in  liohlnxon  v.  lioh'atnon,  and 
Ijine,  1  S\v.  k,  Tr.,  302,  in  which  tlie  rule  of  law  is  treated  as 
perfectly  clear.  1  Sw.  «fe  Tr.,  at  p.  31)2.  Lastly,  there  is  the 
judgment  of  the  house  of  lords  in  iTConnell  v.  The  Qncnn,  11 
( 'I.  it  v.,  155,  which  seems  to  me  to  be  another  clear  illustration 
of  the  rule.  It  ai)pears  to  me,  tlierefore,  that  the  direction  given 
here  was  one  which  should  not  have  been  given  to  the  jury, 
and  that  there  must  be  a  new  trial. 

SfKiMiKX,  .1.  I  have  arrived  at  the  same  conclusion  with 
great  reluctance,  aiul  entirely  upon  the  autliority  of  the  pas- 
sage in  aConnell  v.  The  Queen,  1 1  CI.  k  F.,  155,  p.  230.  The 
decision  is  of  tluOiigliest  autliority,  and  clearly  shows  that  it 
is  a  legal  impossil»ility  that  when  several  persons  are  indicted 
For  a  conspiracy,  any  verdict  should  be  found  which  implies 
that  some  weiu^  guilty  of  one  conspiracy  and  some  of  another. 
With  regard  to  the  other  two  cases  which  bear  upon  the  mat- 
ter, nanu'ly,  Uee  r.  ('aoke,  5  15.  »fc  C,  5r>S,  and  Jieff.  v.  Thomp- 
son, 10  (i.  B.,  H32,  I  should  have  had  no  difficulty  in  saying 
that  I  thought  they  left  open  the  matter  which  O'Connell  v. 
The  Queen,  11  ("1.  k.  V.,  155,  p.  2;)0,  ajjpears  to  have  decided. 
In  Rohlnxon  v.  Hohinmn  and  Lone,  1  Sw.  &  Tr.,  3(;2,  1  think 
the  i)art  of  the  judgment  relating  to  the  criminal  law  is  a  mere 
dictum.  The  rule  applicable  to  divorce  cases  is,  as  it  ajipears 
to  me,  founded  on  common  sense,  and  general  principles  would 
be  in  favor  of  the  contention  which  is  raised  on  the  present  oc- 
casion by  the  prosecution.  I  cannot,  however,  see  any  distinc- 
tion between  the  rule  that  should  apply  to  the  present  case  and 
that  cited  from  (TConneU  v.  The  Queen,  11  CI.  &  F.,  155, 
p.  230,  and  that  being  so,  I  think  the  direction  cannot  be  sup- 
ported. 

Lord  Colkridok,  C.  J.    I  have  some  time  ago  come  to  the 
conclusion  that  I  misdirected  the  jury.    At  the  trial  I  had  not 


584 


AMERICAN  CRimNAL  REPORTS. 


the  cases  of  Rex,  v.  Cool'e,  5  B.  &  C,  538,  or  Reg.  v.  T/tomj)son, 
16  Q.  B.,  8o2,  before  me,  wliicli  I  confess  seem  to  me  much  in 
point.  But  wliat  influenced  me  at  the  time  was  that  it  scome<l 
difficult  to  distinguish  in  principle  between  the  rules  thaf 
sliould  govern  such  a  case  as  the  present,  and  the  practice 
which  had  obtained  in  the  divorce  court  in  Rohhison  v.  Roh'n>- 
soti  and  Lane,  1  Sw.  &  Tr.,  3(52,  and  Stone  v.  Stone  and  Apple- 
ton^  3  Sw.  *fc  Tr.,  (JOS,  and  other  cases  of  that  description,  and 
which  is  based  on  the  fact  that  tliat  wliich  is  evidence  against 
one  person  is  by  no  means  necessarily,  by  om*  law,  evidence 
against  another.  It  follows  that  wheix)  there  is  a  joint  offense 
which  has  to  be  proved  against  each  person  separately,  tlie  evi- 
dence which  is  surtieient  to  c(mvict  one  person  of  the  offense 
may  not  by  any  means  be  sullicient  to  convict  the  other.  The 
princi[)les  of  the  practice  of  the  divorce  court  in  this  nuitter 
seem  to  me  to  be  sound,  and  they  ought  to  be  ai)plled  to  anal- 
ogous cases.  I  am  by  no  means  prepared  to  say  that  if  th«' 
nuitter  were  ven  Integra,  and  even  in  this  case  if  there  could 
have  been  an  appeal  from  this  decision  to  some  other  ti'ibunal. 
[  might  not  have  adhered  to  my  view,  and  left  the  i)oint  to  be 
settled  by  higher  authority.  But  1  feel  bouiul  by  what  I  now 
understand  to  be  the  e.itablished  rule  of  practice.  The  earlier 
cases,  it  is  true,  ar*;  stated  shortly  and  without  much  particulai- 
ity  of  detail.  It  may  be.  if  we  had  all  the  facts  of  those  cases, 
they  niight  turn  out  to  be  less  in  point  than  they  appear  to  be 
at  present;  but  still  from  the  time  of  the  14  lien.  4  {Tliodifs 
Oa.se,  14  Hen.  <»,  ii.")  b),  and  in  note  to  /**(./•  v.  Cooh\  5  B.  &  ('.. 
.')41,  it  has  been  taken  for  grant(>d  by  the  judges  of  these 
<!ourts,  that  in  cases  of  an  indictment  for  conspiracy,  whei-e 
two  people  are  indicted  and  are  tried  together  (because  differ 
ent  considerations  arise  where  i)eople  a'-e  not  tried  together), 
either  both  must  be  convicted  oi-  both  must  be  acipiitted.  That 
seems  to  me  to  have  been  determinetl,  or,  if  not  determined, 
taken  for  granted,  from  very  early  times. 

Coming  <lown  to  later  times,  the  same  thing  must  have  been 
in  the  minds  of  the  Jud^^^cs  who  decided  the  cases  of  Rex  r. 
Cooke,  5  B.  &  C,  538,  and  Reg.  v.  Thompson,  1(5  Q.  B.,  832. 
There  are  distinctions,  I  quite  agree,  which  prevent  either  of 
those  cases  being  directly  in  point;  but  in  182(]  the  court  of 
king's  bench,  though  it  did  not  decide,  certainly  seems  to  have 


THE  QUEEN  v.  MANNING, 


585 


assumed,  as  the  principle  underlying  this  whole  matter,  the 
rule  which  has  been  contended  for  on  behalf  of  the  defendant. 
In  lieg.  v.  llioinpsoii,  IG  Q.  B.,  832,  although  Erie,  J.,  differed 
on  a  particular  point  from  the  three  other  members  of  the 
court,  he  dillered  on  a  pure  point  of  pleading,  and  not  from 
the  principle  which  the  other  three  judges  assumed  or  laid 
down.  Erie,  J.,  does  not  say  a  word  to  the  contrary  of  that 
[)rinciple;  in  fact,  he  rather  assumed  it,  because  he  tried  to 
supi)ort  the  conviction  upon  a  ground  on  which,  technically  as 
a  uuitter  of  pleading,  I  should  think  he  was  wrong,  namely, 
that  "  persons  unknown  "  could  be  construed  to  mean  tiie  two 
persons  who,  in  the  particular  circumstances  of  that  case,  the 
jury  were  unable  to  agree  about.  Then  there  is  the  case  of 
( y Connell  v.  The  Queen,  11  CI.  &  F.,  155,  which  assumes  this 
point  as  the  rule  of  practice,  and  upon  that,  although  there 
was  a  ditreienco  of  opinion  upon  other  points,  the  judges 
agreed.  The  principle  which  underlies  that  decision  is  that 
where  there  are  one  or  more  persons  charged  with  conspiracy, 
the  count  is  a  single  and  complete  count  and  cannot  be  sepa- 
rated into  i)art3.  The  principle  is  the  same  here.  I  certainly 
directed  the  jury  conti'ary  to  that  pi'inciplo:  therefore  I  mis- 
directed the  jury,  and  the  rule  must  be  absolute  for  a  new 
trial.  I  think  it  riglit  to  mention  that  I  have  not  forgotten  in 
sitting  in  this  court  the  rule  as  to  hearing  apjilications  for  a 
new  trial  (Ord.  XXXIX,  r.  2),  but  in  those  rules  there  is  an 
exception  of  criminal  proceedings,  and  as  this  is  a  criminal 
proceeding,  I  have  thought  it  right  to  take  part  in  this  judg- 
ment. 

Rule  absolute  for  a  iiew  trial. 

Solicitors  for  prosecution:  Sole,  Turner  cfe  Knight,  for  H.  R 
Hooper,  Newport,  I.  W. 

Solicitors  for  defendant:  John  Turner  &  Son,  for  F.  P. 
Henry,  Newport,  I.  W.  A.  M. 


58G 


AMERICAN  CRIMINAL  REPORTS. 


The  Queen  v.  Malloky. 

(13  Law  Rep.,  Q.  B.  Div.,  33.) 

Evidence  :  Husband  and  wife — Statement  of  wife  in  presence  of  husband  — 

Admission. 

Upon  the  trial  of  a  prisoner  for  feloniously  receiving  stolen  property,  a  list 
of  the  stolen  articles  which  the  prisoner,  who  was  a  marine  store  dealer, 
had  bought,  wiis  received  in  evidence  in  order  to  sliow  that  he  liad 
bought  at  an  under  value.  Tlio  circumstances  under  whicli  tlie  list  was 
written  were  as  follows :  A  police  constable  asked  the  prisoner  to  con- 
sider when  he  liad  bouglit  the  stolen  property,  to  whit;h  tlie  i)risoner  re- 
plied that  his  wife  should  make  out  a  list  of  it,  and  on  tlie  n(>xt  day  tlie 
prisoner's  wife,  in  her  husband's  presence,  handed  to  anotlu'r  constable 
the  list  tendered  in  evidence,  sajing  in  her  huslwind's  hearing,  "This  is  a 
list  of  what  we  Inniglit,  and  wliat  we  gave  for  tliem.'  The  question 
reserved  wtis  wliethcr  such  list  was  properly  admitted  in  evidence. 
Held,  by  the  court  (Lord  Coleridge,  C.  J.,  Grove,  Field,  Steplien  and 
Smith,  JJ.),  that  the  list  was  clearly  admissible  in  evidence. 

The  followinj^  case  was  stated  for  the  opinion  of  this  court: 

"  Tlie  prisoner,  tieorge  ^lallory,  was  tried  at  the  cast  riding 
of  Yorksliire  quarter  sessions,  held  at  Jjcverley,  on  tlic  9th 
of  April,  l:ss+,  for  receiving  certain  articles,  the  property  of 
Agnes  Fitzpatrick,  knowing  the  same  to  have  been  stolen. 
The  prisoner  was  a  marine  store  dealer,  and  it  ap[)eared  from 
the  evidence  that  the  stolen  articles  v  ere  such  as  he  might 
have  bought  in  the  lawful  exercise  of  his  business.  It  was  not 
disputed  by  the  prisoner  (who  was  represented  by  counsel  i 
that  the  goods  had  been  actually  stolen  by  the  man  who 
brought  them  to  his  shop,  and  the  price  given  by  the  prisoner 
for  the  articles  thus  became  a  material  (]uesti<m  in  the  case. 
With  the  object  of  shewing  that  the  amount  so  paid  was  mudi 
less  than  the  real  value  of  the  stolen  goods,  the  counsel  for  the 
prosecution  proposed  to  put  in  evidence  a  list  of  the  articles 
bought  by  the  i)ris()ner,  with  the  amount  paid  by  him  for  each 
of  the  sevwal  articles. 

"  The  circumstances  under  which  the  list  was  tendered  sulli 
ciently  ap|)ear  from  the  following  notes  taken  at  the  trial: 

"John  Duke,  police-constable  (after  explaining  the  tracing', 
etc.,  of  the  stolen  property),  says:  '  I  asked  Mallory  when  he 
bought  them.  lie  was  much  put  out,  and  said  ho  could  npt 
say,  and  I  asked  him  to  consider,  and  he  said  ho  would,  and  his 
wife  would  make  out  a  list.'    This  was  on  the  JJOth. 


lusband  — 

crty,  a  list 
ore  dealer, 
lilt  ho  liad 
ho  list  was 
lor  to  oon- 
>risoner  ro- 
'xt  day  the 
■  constable 
"This  is  a 
0  quoHtioii 
evidence, 
eplieu  and 

lis  court: 
st  riding 
tlic  9tli 
oi)orty  of 
■11  htolcn. 
ircil  Iroin 
lie  iniglil 
t  WHS  not 
f  counsel  i 
nan  who 
)  prisoiK.T 
tlio  case. 
WiXS  iiuicli 
;el  for  tlic 

0  articles 

1  for  each 

ered  sulli 
trial: 
le  tracinj.', 
f  when  h(> 
could  npt 
Id,  and  his 


THE  QUEEN  v.  MALLORY.  ggf 

"  William  "Winterbottom,  superintendent  of  police,  said:  'I 
went  to  the  prisoner's  house  on  the  31st;  prisoner  and  his  wife 
were  there,  and  the  wife  in  her  husband's  (Mallory's)  presence 
handed  me  a  list  of  goods  with  dates  and  prices ;  she  said,  "  this 
is  the  list  of  wliat  we  bought  and  what  we  gave  for  them." 
The  prisoner  did  not  speak,  but  he  heard  what  she  said,  and 
saw  the  list  handed  to  mo.  I  believe  the  whole  of  it  is  in  the 
wife's  handwriting.'  This  witness  then  produced  the  paper, 
and  the  counsel  for  the  prosecution  tendered  it  in  evidence. 

"  The  counsel  for  the  prisoner  objected  to  its  admission  on 
the  grounds : 

"  1.  That  the  wife  would  be  the  proper  person  to  prove  its 
contents,  and  the  evidence  of  a  wife  is  not  admissible  against 
or  fpr  the  husband. 

"  2.  The  pa[)er  is  neither  more  nor  less  than  the  evidence  of 
the  wife  against  the  husband,  and  is  therefore  inadmissible. 

"  3.  There  is  no  evidence  that  the  husband  knew  or  saw  the 
contents  before  it  was  handed  to  the  superintendent,  nor  that 
it  was  made  by  his  direction,  and  in  a  criminal  case  the  wife 
cannot  be  the  agent  of  her  husband. 

"  I  admitted  the  paper  (^wliich  was  read  to  the  jury  by  the 
clerk  of  the  peace),  reserving  for  the  consideration  of  the  court 
of  crown  cases  reserved  the  question  as  to  whether  or  not  I 
was  right  iu  doing  so.  It  was  proved  that  the  value  of  the 
stolen  pro[)erty  was  greater  than  the  sum  shown  by  the  paper 
to  have  been  paid  by  the  prisoner.  There  was  no  other  evi- 
dence of  the  price  ho  paid. 

"  The  jury  convicted  the  prisoner.  The  question  for  the 
court  is  whether  the  paper  above  mentioned  was  rightly  ad- 
mitted in  evidence.  If  so,  the  conviction  is  to  stand ;  otherwise 
to  be  quashed.    The  list  was  as  follows : 

1884.  £.  s.  d. 

!23  January.    Brass  rods 0  1  6 

23  "            Sheets,  table  cloths,  towels 0  0  0 

24  "  Blankets,  canvas,  knives,  forkrt,  spoons,  3  pillows. .  0  13  0 

25  "            Tea  service,  2  cruets,  o  pillows,  piece  carpet 0  13  0 

20        "            Featherbed 0  14  0 

28        "            Two  feather  beds,  small  looking  ^liiss 1  12  0 

20        "            One  lookinK  Rlass  ornaments 0  6  0" 

liORD  CoLKKiDOE,  C.  J.     If  tliis  luul  1)0011  comuiunicated  to 
the  ix)lice  in  the  absence  of  the  pris(jiior  by  the  prisoner's  wife, 


688 


AMERICAN  CRIMINAL  REPORTS. 


I  niiglit  have  doubted  whether  the  evidence  could  have  bo(Mi 
admitted ;  but  here  the  prisoner,  upon  being  asked  questions, 
says,  in  substance,  "  my  wife  will  make  out  my  answer  for  mo," 
and  then  on  the  next  day  another  policeman  goes  there,  sees 
the  liusband  and  the  wife  together,  and  then  the  wife  hands  over 
the  statement  which  her  husband  had  ordered  her  to  make  out 
for  him.  She  hands  it  over  as  her  husband's  stateuicnt,  and  in 
hie  presence,  and  he  never  denies  this  or  says  that  there  is  any 
mistake  with  regard  to  it.  Had  he  wished  to  contradict  the 
list  or  his  wife's  statement,  he  could  have  done  so;  he  did  not. 
and  the  evidence  is  clearly  admissible. 

Gkove,  Field,  Stephen  and  SMrni,  JJ.,  concurred. 

Conviction  affirmed. 


d: 


The  Queen  v.  Maurer. 

(10  Law  Rep.,  Q.  B.  Div.,  513.) 

ExTKADiTioN :  Jurisdiction  —  Habeas  corpus. 

The  court  has  no  i>ower  to  review  decision  of  magistrate  on  ground 
IT  IS  AGAINST  WEIGHT  OF  EVIDENCE. —  Upou  an  applitation  for  a  habcan 
corpus  in  tlic  caso  of  a  fii>j;itive  criniinal  conuniltod  by  a  police  magis- 
trate, under  the  extradition  act,  the  court  lias  no  power  to  review 
the  decision  of  the  magistrate  on  tlie  ground  that  it  wjis  against  tlic 
weight  of  the  evidence  hiid  before  liim,  there  being  sufiicient  evidcnic 
before  him  to  give  him  jurisdiction  in  the  matter. 

This  was  an  aj)plication  for  a  haheas  corpufi  in  the  case  of 
one  Maurer,  for  whose  extradition  tlio  (Jerman  government 
had  applied  under  the  treaty  between  (Jermany  and  this  coun 
try,  in  respect  of  an  alleged  crime  against  the  bankruptcy 
laws  of  Germany,  and  who  had  been  committed  by  a  police 
magistrate  to  await  the  warrant  of  the  secretary  of  state  for 
his  extradition  for  such  crime. 

Bowen  liowlands,  Q.  C,  moved  for  a  rule  nisi  accordingly. 
lie  contended  that  there  was  no  evidence  upon  the  deposition 
before  the  magistrate  that  the  prisoner  bad  been  guilty  of  any 
bankruptcy  crime  according  to  the  law  of  England,  and  con 


lavc  boon 
questions, 
V  for  Hie," 
here,  socs 
ands  over 
make  out 
nt,  and  in 
ere  is  any 
[•adict  tiic 
e  did  not. 


affirmed. 


:  ON  GROCM) 
for  a  hubcor. 
olico  magis- 
T  to  review 
against  the 
iut  evidfiit  (■ 


10  case  of 
>vernmcnt 
this  coun 
[inkruptcy 
y  a  i)olico 
I  state  for 


cordinglj. 
ilcposition 
Ity  of  any 
,  and  con 


THE  QUEEN  v.  MAURER. 


scqiiontly  no  evidence  of  an  extradition  crinie  within  the  ex- 
tradition act,  JS70,  sec.  2G,  He  further  contended,  in  effect, 
that  the  nia<^isti'ate  was  wrong  in  deciding,  upon  the  evidence 
before  him,  that  there  was  a  prima  facie  case  against  tlie 
prisoner  of  a  bankruptcy  crime  according  to  the  law  of  this 
country,  and  tliat  sucli  decision  was  against  the  weiglit  of  the 
evidence.  [He  cited  Ilaguet's  Case,  2!)  L  T.  (N.  S.),  41 ;  Chii-ke 
on  Extradition,  2d  ed.,  p.  15G.] 

FiRLD,  J.  I  think  that  this  ap[)lication  must  be  refused.  It 
is  clear  that  the  provisions,  both  of  the  extradition  act  and  the 
treaty,  require  that  the  crime  for  which  the  extradition  of 
the  criminal  is  to  take  place,  should  be  a  crime  according  to  the 
laws  of  both  the  contracting  states.  The  ninth  and  tenth  sec- 
tions  of  the  act  provide  that,  when  a  fugitive  criminal  is 
brought  before  the  police  magistrate,  lie  sluill  hear  the  case  in 
the  same  manner,  and  have  the  same  jurisdiction  and  powers, 
as  near  as  may  be,  as  if  the  jn'isoner  were  brought  before  him 
cliarged  with  an  indictable  olfonsn  in  England;  and  if  the  for- 
eign warrant  authorizing  the  arrest  of  such  criminal  is  duly 
authenticated,  and  such  evidence  is  produced  as  (subject  to  the 
provisions  of  this  act)  would,  acccmling  to  the  law  of  England, 
justify  the  committal  for  trial  of  the  prisoner  if  the  crime  of 
which  he  is  accused  had  been  committed  in  England,  the  pohce 
magistrate  shall  commit  him  to  prison,  etc. 

The  counsel  for  the  pris(mor  has  put  forward  two  grounds 
for  this  api)lication.  Taking  the  second  ground  first,  it  is  that 
on  the  balance  of  the  evidence  laid  before  the  magistrate  such 
evidence  was  not  suificient  to  justify  the  conclusion  to  which 
the  magistrate  came.  On  that  question  we  were  referred  to 
IIiKjucfs  Case,  29  L.  T.  (N.  S.),  41,  and  the  observations  made 
on  that  case  in  Clarke  on  Extradition,  2d  ed.,  p.  150,  The 
author  there  says:  "The  very  important  question  was  raided 
in  that  case  whether  the  court  woidd  examine  the  suificiency 
of  tlio  evidence  before  the  police  magistrate,  and  the  court  held 
that  it  was  not  called  upon  to  do  so.  In  that  case,  Martin,  IJ., 
said,  in  giving  judgment:  '  The  question  is,  whether  this  was 
a  proceeding  within  the  jurisdiction  of  Sir  Thomas  Henry.  I  do 
not  say  that  if  there  had  been  no  evidence  before  him,  or  ho 
had  acted  contrary  to  law,  wo  would  not  have  discharged  the 


590 


AMERICAN  CRIMINAL  REPORTS. 


^i) 


prisoner ;  but  it  appears  to  mo  that  all  the  procccflinf^s  have 
been  properly  taken.  This  is  not  a  court  of  appeal  from  his 
decision,  and  it  is  for  him  to  decide  whether  or  not  the  evi- 
dence is  sufficient.'  This  question  of  the  ])o\ver  of  the  court 
to  examine  tlie  Aveight  as  well  as  the  competency  of  the  evi- 
dence before  the  police  magistrate  has  been  much  ari^ued  and 
VTr''-  ^ly  decided  in  the  United  States,  and  will  probably  bo 
d' •'  i  i-^  '  further  in  England.  The  case  mentioned  above  is 
g'  y  loah'  i'  not  conclusive  of  the  matter." 

It  appears  to  me,  however,  that  the  decision  in  Ifngurfs 
C/isc.  '">  L.  f  (N^.  S,),  41,  is  completely  in  accordance  with  the 
princii)les  u[«()n  \vlr.;h  the  courts  act  and  have  always  acted 
with  reference  to  the  adjudications  of  justices  in  general,  and 
without  that  decision  I  think  wo  should  have  come  to  the  same 
conclusion.  The  statute  savs  tiiat  the  majjistrato  shall  have 
the  same  jurisdiction,  as  nearly  as  possible,  as  if  the  prisoner 
were  brought  before  him  charged  with  an  indictable  offense  in 
England.  So  long  as  the  magistrate  keeps  within  his  jurisdic- 
tion we  have  no  j)ower  to  interfere  with  his  decision.  It  is  only 
when  there  is  no  jurisdiction,  as  when  there  is  no  evidence 
before  the  magistrate,  that  we  can  interfere.  It  seems  to  me 
that  in  ffiifji(,'f>i  Cmr,  29  L.  T.  (X.  S.),  41,  all  the  judges 
intended  to  decide  that  it  was  not  for  this  court  to  weigh  the 
evidence,  if  there  was  any  rcasouable  evidence  of  an  extradi- 
tion crime  for  the  nuigistrate  to  act  upon.  If  there  is  such 
evidence  the  magistrate  is  not  going  beyond  his  jurisdiction  in 
committing  the  prisoner  upon  such  evidence. 

The  remaining  point  is,  whether  there  was  any  reasonable 
evidence  for  the  nuigistrate  that  the  prisoner  had  committed 
an  extraditi<m  crime.  [His  lordship  then  discussed  the  facts 
as  appearing  on  the  dejjositions  laid  before  the  magistrate.] 
It  seems  clear  to  me  that,  upon  the  facts  appearing  from  the 
depositions,  there  was  evidence  against  the  prisoner  of  the 
crime  alleged  against  him. 

Matukw,  J.     I  am  of  the  same  opinion.     Tlie  conditions 
of  the  ma,";ist rate's  jurisdiction  are  clearly  indicated  by  the 
extradition  act.    The  crime  in  respect  of  which  extradition  is 
sought  must  be  a  crime  against  the  law  of  both  the  contract 
ing  states,  and  there  must  be  prima  facie  evidence  that  the 


THE  QUEEN  v.  HOLMES. 


591 


Tigs  havo 
.  from  his 
b  the  cvi- 
tho  court 
f  the  cvi- 
<^uo(l  and 
>bal)ly  1)0 
above  is 

I  witli  the 
lys  acted 
icral,  and 

tlie  saino 
hall  have 
3  prisoner 
offense  in 
}  jurisdic- 
It  is  only 

evidence 
sms  to  nie 
10  judges 
ivcigh  the 
n  extradi- 
c  is  sucli 
diction  in 

easonahle 
ommitted 
the  facts 
Lgistrate.] 
from  the 
er  of  the 


conditions 
:mI  by  the 
■ad  it  ion  is 
contract- 
5  that  the 


prisoner  is  guilty  of  such  crime.  There  must  be  sucli  evidence 
as,  according  to  the  law  of  England,  Avould  justify  the  magis- 
trate in  committing  the  prisoner  for  trial  if  the  alleged  crime 
had  been  committed  in  England,  It  appears  to  me  that  in 
the  present  case  there  was  such  evidence.  I  agree  with  my 
Brother  Field  that,  there  being  such  evidence,  we  have  noth- 
ing to  do  with  any  question  as  to  the  weight  of  the  evidence. 
There  is  no  provision  in  the  act  giving  any  right  of  appeal  to 
us  against  the  magistrate's  conclusion.  The  only  application 
open  to  the  prisoner  is  for  a  writ  of  haheas  corpus,  and  that 
a[)plication  can  only  succeed  when  the  magistrate  has  exceeded 

his  jurisdiction. 
•  Application  refused. 


TiiK  Queen  v.  Holmes, 
(12  Law  Rop,,  Q.  B.  Div.,  23.) 

Fai£E  pretkn'ses  — Venue  — Piace  of  trial,— H.  wrote  and  posted  at  N., 
in  England,  a  letter  addressed  to  G,,  at  a  place  out  of  England,  con- 
taining a  false  pretense,  by  means  of  which  he  fraudulently  induced  G. 
to  transmit  to  N.  a  draft  for  ir)0?,,  which  he  there  cashed,  Held,  by 
the  court  (liord  CoUn-idge,  C.  J.,  Denman,  ILawkins,  Williams  and 
Mathcw,  JJ,),  that  there  was  jurisdiction  to  try  IL  at  N. ;  that  the 
pretense  was  made  at  N.,  where  also  the  money  obtained  by  means  of 
it  was  received. 

Case  stated  by  lIunnLEs^rox,  B, 

''  The  prisoner  was  tried  and  convicted  before  me  at  the 
assizes  at  Nottingham,  on  Thurs<lay,  the  2()thof  July,  1883,  for 
obtaining  from  Louis  Gabct  150/,  by  false  pretenses. 

"  Tlic  prisoner,  who  was  a  machine  manufacturer  at  Kotting- 
ham,  had  entered  into  a  contract  at  Cawdry,  in  France,  to  build 
at  Nottingham,  for  (iabet,  a  lace  machine,  to  be  completed 
within  a  certain  time,  to  l)c  paid  for  on  certain  terms,  and  to 
be  sent  to  France  to  Gabet.  The  prist>ner  had  written  at  Not- 
tingham a  letter  containing  the  pretense,  which  was  proved  to 
bo  false,  and  in  consequence  ol"  which  the  prosecutor  had 
pjirted  with  his  money. 

"The  letter  was  written  and  posted  at  Nottingham,  and  re- 
ceived by  the  prosecutor,  Gabct,  at  Cawdry,  in  France,  from 


592 


AMERICAN  CRIMINAL  REPORTS. 


u 


whence  a  d'-aft  for  150^.  was  sent  according  to  and  in  com- 
pliance with  the  directions  of  the  prisoner  contained  in  his 
letter.  The  draft  was  received  by  the  jn'isonor  in  Nottingham 
and  cashed  there. 

"  It  was  objected  on  the  part  of  tlio  prisoner  that,  as  the  false 
pretense  was  made  in  England,  but  did  not  op.orate  to  obtain 
the  money  until  it  reached  its  destination  in  France,  no  offense 
was  committed  over  which  the  English  court  had  jurisdiction. 

"  For  the  prosecution  it  was  contended  that,  as  the  reprcsen 
tation  was  made  in  England  and  the  money  received  there,  tiu; 
offense  was  within  the  English  jurisdiction.    Jte^j.  v.  Coolr,  1 
F.  &  F.,  (54,  was  quoted. 

"The  only  (piest ion  for  the  court  is,  whether  the  prisoner 
could  be  indicted  and  tried  for  the  offense  in  Xottingham.  If 
he  could,  the  conviction  is  to  stand ;  if  not,  the  conviction  is  to 
be  quashed." 

Lord  Coi.kridgk,  C.  J.  This  conviction  is  perfectly  proper. 
The  charge  was  of  fraudulently  obtaining  money  by  false  pre- 
tenses, and  that  charge  was  proved ;  but  a  question  is  reserved 
as  to  whether  the  ])lace  of  trial  was  a  corn^ct  place  in  which 
to  try  the  prisoner.  There  is  no  doubt  that  it  was  correct;  it 
appears,  if  authority  bo  needed,  from  the  case  of  Hex  v.  livv- 
dett,  4  B.  &  A.,  05,  that  when  a  letter  such  as  the  one  in  ques- 
tion is  posted  the  pretense  is  made,  and  here  it  appears  the 
money  is  actually  received  and  obtained  .as  well  as  the  letter 
■[X)sted  in  Nottingham.  Of  the  two  necessary  ingredients  of 
the  offense  both  take  place  in  Nottingham.  It  maybe  that 
one  important  part  of  the  offense  taking  place  in  Nottingham 
would  be  sufficient,  but  here  both  ingredients  take  place  at 
Nottingham, 

Dexman,  J.  I  think  the  conviction  should  be  affirmed,  and 
I  am  disposed  to  think  the  case  covered  by  AVr/.  v.  CooJce,  1  F. 
&  F.,  0-1-.  In  that  case  it  seems  to  have  been  hold  the  man  ob- 
tained the  money  in  Northampton,  whore  he  wrote  the  letter, 
though  it  was  paid  over  in  Westminster,  so  that  this  would  bo 
an  a  fortiori  case  as  compared  with  that. 

Hawkins,  J.  There  is  no  doubt  about  this  cas' :  the  convic- 
tion is  right ;  every  element  occurred  at  Nottingham ;  whatever 


THE  QUEEN  v.  STEPHENSON, 


593 


the  prisoner  did,  he  did  there.  If  the  conviction  were  quashed 
it  would  enable  fraudulent  people  to  carry  on  a  profitable 
trade  in  false  pretenses  with  impunity. 

"Williams  and  Matiiew,  JJ.,  concurred. 

Lord  Colekidgk,  C.  J.  I  prefer  not  to  rest  my  judgment 
upon  lieff.  V.  Cooike^  1  F.  &  F.,  Gl,  because  perhaps  that  convic- 
tion may  have  proceeded  on  the  third  count  of  the  indictment. 
In  saying  this  I  do  not  intend  to  cast  any  doubt  upon  the  case 
of  Reg.  V.  Cooke,  1  F.  &  F.,  04,  but  my  judgment  is  independ- 
ent of  that  case. 

Conviction  affirmed. 


The  Queen  v.  Stephensox  and  another. 

(13  Law  Rep.,  Q.  B.  Div.,  331.) 

Inquest — Destruction  of  body  to  prevent. 

Destroying  dead  body  to  prevent  holding  of  inquest  thereon.— It 
ia  a  misdemeanor  to  burn  or  otherwise  dispose  of  a  dead  body  with  in- 
tent thereby  to  prevent  the  holding  u^wn  such  body  of  an  intended 
coroner's  inijuost,  and  so  to  obstruct  a  coroner  in  the  execution  of  his 
duty,  in  a  case  where  the  inquest  is  one  which  the  coroner  has  jurisdic- 
tion to  hold.  A  coroner  has  jurisdiction  to  liold,  and  is  justified  in 
liolding,  an  inquest,  if  he  honestly  believes  information  which  has  l^eon 
given  to  liim  to  be  true,  wliich,  if  true,  would  make  it  his  duty  to  hold 
such  inquest. 

The  following  case  was  stated  by  Hawkins,  J. : 
"  These  defendants  were  tried  before  me  at  the  assizes 
holden  at  Leeds  on  the  1.5th  day  of  May  last,  upon  an  indict- 
ment in  substance  charging  them  Avith  having  burnt  the  dead 
body  of  an  illegitimate  infant  child  (named  George  Stephen- 
son), to  which  the  defendant,  Elizabeth  Stephenson,  had  re- 
cently given  birth,  with  the  intent  to  prevent  the  holding  of 
an  inquest  upon  it.  The  defendants  were  both  found  guilty ; 
but  I  deferred  passing  sentence,  and  admitted  them  to  bail 
until  the  opinion  of  the  court  of  criminal  appeal  could  be  ob- 
tained upon  certain  questions  of  law  which  I  reserved  at  the 
request  of  their  counsel.  The  defendant  Elizabeth  was,  on 
the  17th  of  December,  1883,  confined  of  the  child  in  question 
Vol.  IV— 38 


rm 


AMERICAN  CRIMINAL  REPORTS. 


at  tlio  house  of  a  ]\rrs.  Atkinson,  at  Cayton,  near  Scarborough, 
in  the  north  riding  of  Yorkshire,  with  Avhom  it  lived  until  its 
death  on  the  morning  of  the  12th  of  January  last. 

'"  On  the  9th  of  January  tlie  defendant,  Elizabeth,  took  it 
out  for  the  day  —  it  was  then  quite  well  —  but  on  the  follow- 
ing day  it  was  very  poorly  and  had  fits,  and  it  remained  ill 
until  its  death.  The  dead  body  remained  in  the  house  of  Mrs. 
Atkinson  until  the  night  of  the  following  ^londay,  when  it 
Avas  surreptitiously  taken  away  by  the  two  defendants  and 
burnt,  with  intent  to  jii-event  the  coroner  from  holding  an  in- 
quest upon  it.  The  defendant  Ann  is  the  mother  of  Elizabeth, 
and  they  lived  together  at  Cayton  in  a  cottage  opposite  Mrs, 
Atkinson's. 

"  It  is  fair  to  the  defendants  to  say  that  there  Avas  no  evi- 
dence bef<n'e  me  to  show  that  the  death  of  the  child  was  du(! 
to  any  misconduct  of  tiieirs,  but  nevertholess  the  police,  in  the 
discharge  of  their  duty,  communicated  to  the  coroner  for  the 
north  riding  the  fact  of  the  death  of  the  child,  and  such  in- 
formation respecting  it,  the  honesty  and  loim  Jiih'>t  of  whic  \ 
he  had  no  reason  to  doubt,  as  led  him  to  the  conclusion  that 
it  was  his  duty  to  hold  an  intpiest  upon  the  body.  There  was 
no  pioof  that  the  inforriiation  given  to  tlie  co/cdier  vas  true, 
bat  the  coroner  honestly  belicn'od  it  to  bo  so,  aiid  it  nuist  be 
taken  as  a  fact  that  if  the  information  was  true  it  Avas  the  im- 
poratiA'e  duty  of  the  coroner  to  hold  an  incpie.-it.  The  coroner 
accordingly  appointed  the  afternoon  of  the  following  day  — 
Tuesday,  the  15th  of  January —  for  the  holding  of  sucli  inquest, 
and  of  this  the  defendants  had  kno\v]ed<j:c  on  the  ^londav 
e\'cning.  The  jury  Averc  duly  assembled  and  the  coroner 
attended  pursuant  to  his  a])pointment.  The  inquest,  howe\'er. 
could  not  be  holden  because  the  body  Avas  not  forthcoming,  it 
having  boon,  on  the  night  of  the  Monday,  secretly  taken  from 
the  house  of  Mrs.  Atkinson  and  burnt  l>y  the  two  defend- 
ants as  above  stated.  At  the  close  of  the  case  for  the  prose- 
cution the  learned  counsel  for  the  defendants  (^[r.  Stuart- 
Wortley  for  Ann,  and  Mr.  Millor  for  Elizabeth)  ol)jected  to  th(~ 
sullicicncy  of  the  indictment  that  the  ])reliminarv  averments 
do  not  allege  that  the  case  AA'as  not  a  proper  one  for  an  inquest. 
or  that  the  proposed  inquest  Avas  one  Avhich  ought  to  be  held ; 
that  the  information  on  Avhich  the  coroner  acted  should  havt; 


THE  QUEEN  v.  STEPHENSON. 


50.") 


borough, 
until  its 


1,  took  it 
e  follow- 
liiined  ill 

0  of  Mrs. 
,  when  it 
iints  iind 
vr  an  in- 
slizabeth. 
•site  Mrs. 

IS  no  evi- 

1  was  clu(; 
ce,  in  the 
T  for  tlic 
1  sucli  in- 
of  w])ic  I 
ision  that 
'liore  Avas 
Vs  .IS  true, 
:,  nuist  he 
[IS  the  ini- 
0  coroner 
1"^  dav- 
'h  inquest. 
!  ^londay 
3  coroner 

however, 
coniin*^,  it 
iken  from 
o  defend- 
tlio  prose- 
>.  Stuart- 
tcd  to  the 
avernientsi 
m  inquest, 
o  be  held ; 
lould  hav(^ 


been  set  out,  and  it  ouglit  to  have  been  shown  that  the  case 
was  one  in  wliich  the  coroner  was  bound  to  hold  an  inquest. 
I  reserved  these  objections  for  tlie  opinion  of  this  court.  It 
was  then  objected  tliat  there  was  no  evidence  of  tlie  truth  of 
the  information  given  to  the  coroner.  I  overruled  that  ob- 
jection, and  held  tluit  if  the  information  given  to  the  coroner, 
and  honestly  believed  by  him  to  be  true,  was  such  as,  assum- 
ing its  truth,  to  make  it  his  duty  to  hohl  an  inquest,  lie  was 
fully  justified  in  directing  the  inquest  to  be  holden;  and  that 
the  jurisdiction  of  a  coroner  to  hold  an  inquest  does  not  de- 
pend upon  the  truth  of  the  information  furnished  to  him,  but 
upon  his  hona  fide  belief  in  the  existence  of  circumstances 
communicated  to  liim.  which,  if  true,  would  make  it  hi.-,  duty 
to  interfere  and  hold  a  court  of  inquiry  on  view  of  the  body. 
I  gave  Ml*.  Stuart-Wortley  leave,  however,  to  raise  this  question, 
if  he  thought  fit,  on  the  argui   ^nt  of  this  case. 

"  It  must,  however,  be  taken  that,  assuming  the  circumstitnces 
brought  to  the  attention  of  the  coroner  to  be  facts,  he  was 
al)un(l;intly  justified  in  the  course  he  took.  The  learned  coun- 
sel for  the  defendants  further  objected  that,  assuming  the  coro- 
ner to  have  rightly  determined  to  hold  the  inquest,  and  the 
defendants  to  luive  secreth"^  obtained,  and  burnt  and  disposed 
of  the  body,  with  the  intent  to  prevent  the  inquest  being  held, 
and  so  to  obstruct  the  coroner  in  the  execution  of  his  duty, 
that  did  not  amount  to  a  criminal  offense.  I  held  that  it  did. 
and,  having  directed  the  jury  in  accordance  with  these  rulings, 
the  jury  found  both  defendants  guilty. 

"  I  reserved  the  questions  of  law  above  raised  for  the  opin- 
ion of  this  court.  If  my  rulings  are  correct,  and  any  one  or 
more  counts  of  the  indictment  are  good,  the  conviction  is  to 
stand.     If  otherwise, 'it  will  bo  reversed." 

S'lrnrf-Worfl^;/  and  //.  G.  T(i>/'o)\  for  the  defendants.  In 
order  to  create  the  offense  charged,  it  is  essential  to  prove  that 
the  inquest  which  the  coroner  proposed  to  hold  was  one  which 
it  was  his  duty  to  hold.  H'cj.  v.  Prke,  12  Q.  B.  D.,  2-17,  2-lS. 
It  can  be  no  offense  to  prevent  a  coroner  holding  an  inquest 
which  it  wouUl  bo  improper  or  illegal  for  him  to  hold.  The 
office  of  the  coroner  existed  before  the  Statute  do  Officio  Co- 


500 


AMERICAN  CRIMINAI    REPORTS. 


ronii^oi'is  (4  Echv.  I.,  St.  2,  A.  D.  1270).  In  that  statute  (Iki 
phrase  used  is  "suddenly  dead,"  but  the  expression  has  re- 
ceived a  recoju^nizcd  nicanin<^,  and  does  not  inehide  cases  of 
death  without  violence  and  from  ordinary  natural  causes.  The 
case  of  Hex  v.  JunttvcH  of  Kent,  11  East,  229,  231,  where  a  man 
apj)arently  in  <^o<)d  health  sat  down  in  a  cluiir,  in  a  s!iop,  com- 
plained of  a  pain  in  his  hip,  and  suddenly  died,  hear:^  out  this 
view.  The  coroner,  in  that  case,  held  an  inquest  on  the  body, 
and  was  disallowed  his  fees  bv  the  majjistrates,  on  the  "round 
that  the  in(^uest  Wiis  not  duly  hehl;  and,  upon  an  application 
bei  .,"  made  to  the  lvini»;'s  bench  to  interfere  by  nnuuhtmns  to 
compel  the  allowance  of  such  fees,  that  court  refused,  Lore' 
Ellenborou^h  observin"-  that  it  was  hiyflilv  illey,al  for  coronc 
to  obtrude  themselves  into  private  families,  without  any  pre- 
tense of  the  deceased  havinu:  died  otherwise  than  bv  a  natural 
death.  Tn  East's  Pleas  of  the  Crown  it  is  said:  "There  ought 
at  least  to  be  a  reasonable  sus[)icion  that  the  party  came  to  his 
death  by  violent  or  unnatural  means."  1  East,  P.  C,  '5S2.  In 
Hide's  Ilistoria  Placetorum  Corona?,  it  is  said:  "For  though  a 
man  die  suddenly  of  a  fever,  or  apo])lexy,  or  other  visitation  of 
(iod.  tlie  township  shall  not  be  amerced,  for  then  the  coroner 
sliould  be  sent  for  in  every  case;  but  if  it  bo  an  unnatural  oi' 
violent  death,  then,  indeed,  if  the  coroner  be  not  sent  for  to 
view  tlu^  body,  the  town  shall  be  amerced."  Hale,  2  Hist.  P. 
C,  57.  In  Jarvis  on  Coronei's  (Jarvis  on  Cor.,  4th  ed.,  p.  31)  it 
is  said  that  there  is  no  occasion  (except  in  the  case  of  a  person 
dying  in  gaol)  for  the  intopfercnce  of  the  coroner,  unless  there 
be  a  reasonable  ground  of  suspicion  that  the  party  came  to  his 
death  by  violent  and  unnatural  means.  In  the  present  case 
the  child  died  a  natural  death,  so  that  the  incpiest  was  one 
which  would  have  been  illegal  and  unnecessary,  had  it  been 
held.  It  is  not  said  that  the  coi-oner  had  reasonable  ground 
for  believing  the  alleged  facts  communicated  to  him,  but 
merely  that  he  did  honestly  believe  them.  The  defendants 
knew,  it  may  be  urged,  that  there  was  no  ground  for  holding 
the  inquest.  Reasonable  belief,  however,  of  a  coroner  in 
statements  made  to  him  will  not  Justify  such  coroner  in  hold- 
ing an  inquest,  for  his  jurisdiction  depends  upon  the  fact  of 
a  sudden,  that  is,  a  violent,  death. 


■ 


THE  Vt'EEN  V.  STEPHENSON. 


jO) 


["Williams,  J.  Is  it  n('C(>ssiiry  for  you  to  go  so  fivr  iis  that? 
It  is  (]uit()  possible  for  tlit'  coroner  to  be  justified  in  holding  an 
inquest,  althou]L!,h  it  should  turn  out,  when  it  is  held,  that  it  was 
unneeessarv.  It  is  eiU)Uj^h  for  you  to  contend  that  the  par- 
tics  may  be  justilied  in  removinjj  the  body  if  the  inquest  is,  in 
fact,  needless.] 

Certainly  a  case  of  this  land  depends  upon  different  consid- 
erations fi'om  a  proceeding  against  a  coroner  for  iin])ro]nM'ly 
and  vexatiously  holding  an  iiKpiest.  In  /?('./•  v.  JiiHtlaii  of 
lunt,  11  East,  220,  ij:)!,  the  court  exculpated  the  coroner  from 
intentional  iinproi)er  practice.  In  An<m.,  7  Mod.  Rep.,  15, 
Holt,  C  J.,  says:  "  It  is  matter  indictable  to  bury  a  man  that 
dies  of  a  violent  denth  before  the  corcmcr's  inquest;"  and  this 
tends  to  show  that  to  make  the  offense  it  has  to  appear  that 
the  death  was  violent ;  it  is  not  suggested  to  be  enough  if  tho 
death  is  honestly  believed  by  the  coroner  to  be  violent.  Tho 
following  authorities,  R<'<j.  v.  CleA\  1  Salk.,  o77;  R<'x  v.  Sol- 
(jard,  2  Str.,  1<»1)7;  Hawk.  P.  C,  book  2,  ch.  9,  sec.  23;  Fitz.  Nat. 
Brcv.;  Kussell  on  Crimes,  5th  cd.,  vol  1,  p.  020;  Arch.  Cr.  P., 
[)p.  1,  3,  were  also  cited. 

[Stkimikn,  J.,  referred  to  the  Reports  of  the  Criminal  Law 
Commissioners:  Report  8,  ch.  5,  sec.  5;  Rei)ort  7,  p.  02.] 

Mael',  for  the  ])rosecuti()n.  The  statute  is  merely  directory. 
Hawk.  P.  C.,  book  2,  ch.  0,  sec.  21.  Tlie  common  law  duties  of 
a  coroner  are  not  in  any  way  reduced  by  the  statute. 

If  the  law  is  that  inquests  are  unlawful  except  where  the 
death  was  from  violence,  a  coroner  should  hold  a  preliminary 
in(piiry,  and  examine  witnesses  to  see  whether  he  ought  to  hold 
an  inquest.  The  jurisdiction  of  the  court  does  not  depend  upon 
the  truth  of  the  information.  In  lle.c  v.  Justice-!  of  Kent^  11 
East,  22t>,  231,  the  court  thought  the  coroner  acted  unreason- 
ably and  vexatiously,  whereas  hero  the  information,  if  true, 
abundantly  justified,  it  is  said,  the  inquest.  It  is  always  an 
offense  to  obstruct  tho  execution  of  an  act  of  parliament,  l^'x 
r.  Snuth,  2  Doug.,  441,  per  Ashurst,  J.;  Arch.  Cr.  P.,  p.  3; 
East's  P.  C,  vol.  1,  p.  382. 

Stuart-  Wortley  rei)lied. 

GuovK,  J.  This  conviction  should  be  affirmed.  There  are 
two  points  raised  by  the  case  which  has  been  stated ;  lirst,  is  it 


598 


AMERICAN  CRIMINAL  REPORTS. 


indictable  at  common  law  to  prevent  the  holding  of  a  coroner's 
inquisition?  and,  secondly,  is  there  enough  before  us  to  show 
that  the  coroner  had  jurisdiction  to  hold  the  inquest? 

Xo  case  that  has  been  referred  to  is  absolutely  in  point, 
but  there  are  many  cases  which  shew  that  interference  with 
statutory  duties  and  the  preventing  of  their  perfornuuico  is 
a  misdemeanor  in  general  at  the  common  law.  It  is  so  in 
cases  where  statutory  provisions  arc,  as  here,  for  the  public 
benefit,  and  especially  where,  as  here,  the  matter  is  one  con- 
cerning life  and  death.  It  is  most  important  to  the  public 
that  a  coroner  who  on  reasonable  grounds  intends  to  hold  an 
inquest  should  not  be  prevented  from  so  doing.  The  <,'oiise- 
quences  would  otherwise  be  most  formidable,  especially  iu  the 
case,  I  fear,  of  young  children,  for  any  one  might  prevent  the 
holding  of  an  inquest  by  the  destruction  of  a  dead  body  with 
impunity,  unless  it  could  bo  proved  that  the  death  had  been 
caused  by  violence.  The  only  evidence  might  be  the  exam- 
ination of  the  body  itself.  It  might  be  that  the  only  witness 
of  the  death,  vras  the  murderer  of  the  ])erson  found  death  To 
hold  it  no  'jlfense  to  prevent  the  administration  of  the  law  by 
preventing  an  inquest  being  held,  uidess  pi'oof  could  be  given 
of  the  cause  of  death,  and  that  it  was  a  violent  cause,  would 
sot  at  naught  the  i)rotecti(m  which  there  is  at  ])resent  to  the 
jiublic.  The  intjuest  is  itself  an  inquiry  into  the  cause  of  death, 
and  the  ])resent  indictment  is  framed  upon  this  view.  The  con- 
trary view  involves  this  i)rop()sit ion:  that  a  coroner  should  bo 
certain  of  the  cause  of  death  before  he  ventures  to  hold  iiis 
inquest.  This  is  certainly  not  the  law.  It  is  certainly  not 
what  the  statute  governing  this  matter  says.  A  coroner  acts, 
and  ouglit  to  act,  upon  information,  not  upon  conclusive  evi- 
dence. He  intpjires  in  cases  of  su(hlen  death  whore  such  in- 
(juiry  is  desirable.  Ih'octfm  (Lib.  Ill,  l)e  Conma,  ch.  V)  and 
The  ^[irrour  (Tlie  ]\Iirrours  of  Justice,  by  Home,  p.  JJS)  show 
that  the  statute  is  but  an  attirmation  or  a  con(irinati«m  of  tlu^ 
common  law.  In  the  statute  there  is  notliing  about  murder. 
The  words  are,  "  suddenly  dead ;"  and  the  statute  requires  an  ex- 
amination of  the  dead  body.  The  whole  wording  of  the  statute 
shews  that  it  is  the  bodies  that  are  to  be  e.xanuned  to  lind  the 
cause  of  death.  A  coroner's  intpiiry  would  be  useless  if  tlu; 
coroner  previously   had,  by  evidence,  to  satisfy  himself  of 


THE  QUEEN  v.  STEPHENSON. 


590 


the  cause  of  death.    In  the  present  case  it  a]>pears  that  there 
was  at  the  least  a  reasonable  suspicion,  and,  indeed,  probably 
more  than  a  reasonable  suspicion.    The  police  informed  the 
coroner ;  the  information  came  from  parties  whose  business  it 
was  to  look  into  these  matters ;  probably  the  coroner  honestly 
lielieved  the  information  thus  given  to  him.    It  is  clear  to  my 
mind  that  in  holding  an  inquest  the  coroner  would  onl}'  in 
such  a  case  bo  doing  his  duty,  and  in  this  duty  the  defendants 
obstruct  him  by  surreptitiously  taking  away  the  body  and 
burning  it.    Their  object  was  to  prevent  the  inquest.  The  case 
in  7  Mod.  Hep.  (case  15)  seems  to  me  in  point.     In  the  partic- 
ular case  tlic  death  was  violent.   That  either  means  appeared  to 
have  been  a  violent  one,  or  it  means  was  discovered  to  have 
been  a  violent  one  when  the  inquest  Avas  held;  but  Lord  Holt 
seems  to  indicate  that  the  offense  was  the  burying  the  child 
before  the  inquest  so  as  to  obstruct  the  inquest.     If  it  is  a  crime 
to  bury,  a  fortiori  it  is  one  to  burn  a  body ;  because  if  you 
bury,  exluunation  is  possible;  but  if  you  burn,  the  body  is  de- 
stroyed and  examination  is  no  longer  possible.    However,  here 
it  is  enough  to  say  the  coroner  had  a  right  to  hold  the  inquest, 
and  the  ])ris()ners  were  wrong  in  secretly  and  intentionally 
burning  tlic  body  to  obstruct  him  in  his  duty  of  holding  such 
inquest. 


Stkimiicn-,  J.  I  am  of  the  same  opinion.  It  is  a  misdemeanor 
to  destroy  a  body  upon  wliich  an  inquisition  is  about  to  bo 
properly  lield,  with  intent  to  ju'cvent  the  holding  of  that  in- 
quest. This  appears  from  many  authorities  and  from  the  case 
in  7  Mod.  Kep.  (case  15).  Is  it  true  that  it  is  a  misdemeanor 
to  interfere  in  a  case  where  the  coroner  is  of  opinion  that  an 
inquest  must  be  held,  or  is  it  necessary  that  the  facts  should 
be  such  that  the  inquest  ought  to  be  held?  This  matter  is  not 
absolutely  covered  by  authority.  In  one  sense  we  do  create 
new  ()(T(Mises,  that  is  to  say,  that,  as  a  court,  we  can  and  do  de- 
fine the  law  from  time  to  time  and  apply  it  to  the  varying 
circumstances  wliich  arise.  In  Iic(j.  v.  Price,  12  Q.  B.  D.,  247, 
248,  I  said,  "  It  is  a  misdemeanor  to  prevent  the  holding  of  an 
inquest  which  ought  to  be  held,  by  disposing  of  the  body.  It 
is  essential  to  this  offense  that  the  inquest  which  it  is  proposed 
to  lu)!(!  is  one  which  ought  to  be  held.    The  coroner  has  not 


600 


AMERICAN  CRimNAL  REPORTS. 


absolute  riglit  to  hold  inquests  in  every  case  in  which  he 
chooses  to  do  so.  It  would  be  intolerable  if  he  had  power  to 
intrude  without  adequate  cause  upon  the  privacy  of  a  family 
in  distress,  and  to  interfere  with  their  arrangements  for  a 
funeral.  Nothing  can  justify  such  interference  except  a  rear 
sonable  suspicion  that  tliere  may  have  been  something  peculiar 
in  the  death,  that  it  may  have  been  due  to  other  causes  than 
common  illness.  In  such  cases  the  coroner  not  only  may,  but 
ought  to,  hold  an  inquest ;  and  to  j)revent  him  from  doing  so  by 
disposing  of  the  body  in  anyway  —  for  an  inquest  must  be 
held  on  the  view  of  the  body  —  is  a  misdemeanor."  I  say  the 
same  thing  now,  and  I  concur  in  my  brotlier  Grove's  view;  in- 
deed, any  other  view  would,  in  my  opinion,  bo  absurd.  If  a 
person  destroys  a  dead  body,  or  removes  it  to  prevent  an  in- 
quest being  held,  lie  is  guilty  of  an  offense  if  tlio  in{|uest  in- 
tended to  be  held  was  one  that  mi<2,ht  lawfullv  be  hold.  As 
has  been  said  in  the  course  of  the  argument,  a  nuin  who  ob- 
structs an  inquest  in  this  way  takes  his  clianco  of  the  incjuest 
being  one  that  it  was  right  to  hold.  It  is  an  obstruction 
of  an  officer  of  justice ;  it  prevents  the  doing  of  that  which 
the  statute  authorizes  him  to  do. 


Williams,  J.  I  concur  upon  the  case  as  reserved.  Other 
collateral  questions  have  been  mo<  ted  and  discussed,  but  what 
is  reserved  is,  lirst,  whether  a  bona  jiih  belief  in  the  coroner  in 
information  which  has  been  given  to  him,  and  winch  informa- 
tion, if  true,  could  justify  an  in((uest,  is  suilicicnt.  It  is  (piite 
clear  to  me  tluit  a  honujide  l)elief  in  information  from  reliable 
sources,  which,  if  true,  renders  it  a  coroner's  duty  to  hold  an 
inquest,  suiiices  to  give  the  coroner  jurisdiction.  Tlie  next 
(juestion  reserved  is,  wliethor  obstruction  of  the  coroner  in 
this  duty  of  liis  is,  under  such  circumstances,  a  misdemeanor; 
and  to  that  I  answer,  it  most  clearly  is.  With  regard  to  the 
other  questions,  wliich,  as  I  say,  do  not  actually  arise  for 
decision,  I  do  not  propose  to  discuss  them. 

Mathew,  J.  I  am  of  the  same  oi)inion.  It  is  clear,  I  think, 
that  the  coroner  must  act  upon  information  of  other  i)ersons, 
and  must  hold  his  inquest,  if  he  believes  honestly,  and  has 
reasonable  grounds  for  believing,  that  tluit  information  is  such 


THE  QUEEN  v.  DE  BANKS. 


601 


as  to  call  for  an  inquest.  It  will  never  do  to  allow  other  per- 
sons to  decide  for  themselves  whether  they  will  permit  an 
inquest  to  be  held  or  not. 

IIawkixs,  J.  At  the  trial  I  had  not  any  serious  doubt  upon 
the  matter,  but  the  general  importance  of  the  question,  as  well 
as  its. importance  to  tlie  persons  charged,  induced  me  to  reserve 
the  case.  If  a  coroner  has  information  Vv'hich,  if  true,  makes 
it  his  dut\-  to  hold  an  inquest,  and  he  bona  fide  beUeves  that 
infornuition,  he  must,  1  think,  hold  such  inquest.  Jurisdiction 
does  not  depend  on  actual  facts.  Jurisdiction  to  inquire  can- 
not depend  upon  the  actual  result  of  the  inquiry.  Destroying' 
tlie  body  was  to  make  it  impossible  to  hold  the  inquest — in- 
(juests  being-  lield  upon  the  body.  1  am  clearly  of  opinion 
that  the  ilercudants  committed  tlie  olfense  charged  in  making 
it,  as  tliey  did,  inq)ossible  to  hold  the  inquest,  and  that  the 
conviction  must  certainly  be  aiiirmed. 

Conviction  ajjirined. 


TuE  Ql'ken  V.  De  Banks. 

(13  L:i\v  Rep.,  Q.  B.  Div.,  20.) 

Lakceny  by  bailee. 

A  prisonor  was  oonviftod  of  huci'iiy  under  the  following  circumstances: 
Tlie  i)rosefUt()r  )j,uve  a  mare  of  his  into  tlio  care  of  tlie  prisoner,  telling 
hiui  that  it  waa  to  Ijj  nold  ou  tliu  next  WedneaJay.  On  the  next 
Wednesday  the  proseeutor  did  not  go  himself  to  sell  his  mare,  but  sent 
liis  wife,  wlio  went  to  wiiere  the  prisoner  was  and  saw  liim  riding  the 
mare  about  a  horse  fair,  and  sell  lier  to  a  third  party,  and  receive  on 
sucli  sale  some  money.  The  prosecutor's  wife,  after  such  sale,  asked 
the  prisoner  to  give  her  the  money,  saying  she  would  pay  his  expenses. 
This  the  i)risoner  declined  to  do,  and  eventually  ho  absconded  with  the 
money  and  without  accounting.  IhhJ,  by  the  court  (Lord  Coleridge, 
C.  J.,  tlrove.  Field,  and  Smith,  JJ.,  Stephen,  J.,  dissenting),  that  there 
was  evidence  tlu.t  the  prisoner  Avas  a  bailee  of  the  money  thus  paid 
to  him,  and  that  the  conviction  could  be  8Ui>ported. 

The  following  case  was  stated  by  the  deputy  chairman  of 
the  quarter  sessions  for  the  county  of  Salop : 


602 


AMERICAN  CRIMINAL  REPORTS. 


"  The  evidenc3,  so  far  as  it  is  material  to  the  point  reserved, 
was  as  follows: 

*'  Joseph  Suker,  the  prosecutor,  proved :  '  On  Friday,  tlie  11th 
of  January,  I  drove  a  cliestnut  mare  into  Chester  with  pris- 
oner. I  left  her  at  Mr.  ^\'^ild's,  a  butcher.  I  engaged  the  i)ris- 
oner  to  look  after  her.  I  said  to  him,  '^Do  the  niaro  avcU,  and 
I  will  be  here  on  Wednesday  morning  and  will  pay  yon  for 
your  work."  He  was  to  have  charge  of  her  till  I  came.  I 
told  liim  to  pay  for  the  keep  till  I  came.  I  meant  him  to  look 
after  her  altogether.  I  should  not  have  objected  to  his  doing 
anything  else.  On  Saturday,  tlie  liitli  of  January,  I  saw  pris- 
oner. I  asked  him  how  the  inare  looked,  and  he  said  she  was 
as  lame  as  a  cat;  he  said  he  had  removed  her  to  his  fat  hers 
house.  I  said  I  should  l)e  at  Chester  by  the  lirst  train.  I  told 
him  the  mare  sliould  be  sold  on  the  AVednesday  morning  when 
I  went,  as  she  would  not  do  for  me.  I  sent  my  wife  on  that 
morning.  I  have  never  received  a  farthing  from  prisoner  on 
account  of  the  mare.' 

"  Annie  Sukor,  wife  of  prosecutor,  proved:  '  I  went  on  "Wed- 
nesday, the  1  nth  of  January.  I  saw  prisoner  in  th(^  street.  I 
asked  hi ni  if  he  had  sold  the  mare;  he  said  he  had  not.  I 
went  with  him  to  Wild's  sta I )les.  Saw  mare  taken  out  of  the 
stables  into  the  street.  Prisoner  Avas  riding  the  mare  about 
the  fair,  ^h:  Foster  bought  her.  Prisoner,  ]\[r.  Foster  and 
Arthan  went  to  the  Queen's  Head  together.  I  was  outside  the 
door  and  watched.  I  saw  Foster  give  prisoner  some  money. 
Prisoner  came  out  and  shewed  me  a  check.  He  did  not  give 
it  me.  lie  said  lie  would  go  to  the  bank  and  get  it  cashed.  I 
asked  him  for  it  several  times,  but  he  Avould  not  part.  He  told 
me  he  had  sold  the  mare  for  I'JA  He  came  out  of  the  bank 
and  said  they  would  not  cash  him  the  check.  I  asked  him  to 
give  it  to  me  and  said  I  would  pay  his  expenses,  lie  would 
not  do  so.  I  said  he  must  come  with  me  to  Whitchurch,  and 
I  must  have  either  the  money  or  the  mare.  I  had  great  difli- 
culty  in  getting  him  to  the  station.  At  AVhitchureh,  when  we 
got  to  the  gas  works,  he  bolted  down  a  little  alley  which  leads 
to  the  canal.  I  ran  after  him  and  called,  but  ho  did  not 
answer.     I  have  never  received  any  money  for  the  mare.' 

"  Joseph  Arthan  proved  side  of  chestnut  marc  by  prisoner 
to  Foster,  and  payment  of  15^.  to  prisoner. 


THE  QUEEN  v.  DE  BANKS, 


603 


"  Robert  Thomas,  sergeant  of  police,  proved  that  prisoner 
absconded  from  Whitchurch  on  the  18th  of  January;  prisoner 
was  arrested  at  Cliester  on  the  31st  of  January. 

"  I  held  there  was  no  evidence  to  go  to  the  jury  of  tlie  de- 
fendant's employment  as  a  servant  so  as  to  make  hin\  guilty  of 
embezzlement.  It  was  then  contended  on  beluilf  of  the  de- 
fendant that  there  was  no  evidence  of  the  larceny  of  15^,  I 
left  the  case  to  the  jury,  who  found  '  that  the  prisoner  had 
authority  to  sell  the  marc  and  converted  the  money  to  his  own 
use,'  and  a  vordict  of  '  guilty  of  larceny '  was  recorded, 

"The  question  reserved  for  the  opinion  of  the  court  is 
whether  there  was  any  evidence  of  larceny  which  could  prop- 
erly be  left  to  tlio  jury." 

No  counsel  appeared,  , 

Lord  Colkuidok,  C.  J,  This  case  raises  some  nice  questions 
of  law,  I  could  wish  that  we  had  had  the  advantage  of  the 
ar<rumcnt  of  counsel.  The  conclusion  at  which  I  have  arrived 
is,  that  the  conviction  may  be  allowed  to  stand.  The  question 
which  we  have  to  consider  is  not  whether  the  prisoner  was  a 
servant,  and  embezzled,  but  whetlier  there  was  evidence  to  jus- 
tify a  conviction  for  larceny.  Probably  the  prisoner  was 
intrusted  with  the  horse  for  sale ;  the  jury  have  so  found,  and 
the  evidence  of  the  prosecutor  would  seem  to  shew  tliat  that 
linding  was  correct.  He  was  tlien  to  sell  the  mare,  and  to 
receive  the  money  derived  from  such  sale,  and  then  to  hand  it 
over  to  the  prosecutor  or  to  his  agent,  who  in  this  case  was  his 
wife.  It  seems  to  me  that  as  soon  as  the  prisoner  had  sold  the 
mare  the  wife  was  entitled  to  the  money,  and  being  asked  by 
the  wife  for  the  money,  ho  became  bailee  of  the  money,  and 
was  guilty  of  larceny  of  that  money  of  which  he  was  bailee. 

GuovE,  J.  I  must  say  I  have  some  doubt  upon  this  matter, 
but  upon  the  whole  I  tliiuk  there  was  evidence  tliat  the  pris- 
oner took  the  prosecutor's  money  and  carried  it  away,  being  a 
bailee  of  it. 

Field,  J,  I  am  of  the  same  opinion,  I  had  considerable 
doubt  about  the  point,  and  my  doubt  was  whether  the  prisoner 
was  in  truth  a  bailee.    Now  it  was  the  fair,  horses  were  being 


604 


AMERICAN  CRIMINAL  REPORTS, 


:-;i  i:. 


sold  for  cash  at  that  fair,  and  the  prisoner,  in  Avhoso  charge 
the  mare  had  been  put  by  the  prosecutor,  sold  her,  and  accord- 
ing to  the  evidence  received  some  money  for  her,  which  was, 
as  a  witness  proved,  15/.  Xow  was  he  a  bailee  ?  In  the  pres- 
ent case,  there  was  no  usual  course  of  dealing  between  the  pur- 
ties  by  virtue  of  which  the  prisoner  had  a  right  to  mix  the 
money  he  received  with  his  own  moneys,  so  tluit  no  specific 
money  was  his  employer's.  On  the  contrary',  in  the  present 
case,  the  ))risonor  ought  to  have  handed  over  the  money  that 
he  had  received  at  once,  as  I  read  it,  to  the  prosecutor,  or  to 
his  wife.     The  conviction,  therefore,  can  be  supported. 


Stkimikx,  J.  I  am  sorry  to  be  compelled  to  differ  from  ray 
lord  and  the  m:ijority  of  the  court;  the  diffcM'ence,  however,  is 
upon  the  view  v.e  take  of  the  facts,  ^ty  view  is  that  the  num 
Avho  has  been  convicted  was  not  the  bailee  of  the  money.  I 
think  he  received  the  money  with  no  obligation  to  return  the 
identical  coins,  and  that  the  jiresont  case  is  governed  by  lie;/. 
r.  Ilcmall,  L.  &  C\,  58;  30  L.  J.  (M.  C),  175.  Cock  burn,  C.  J., 
in  that  case  states  that  which  it  is  not  disputed  is  the  law,  that 
"the  word  bailment"  must  be  understood  as  meaning,  in  tiu; 
larceny  act,  "a  de})osit  of  something  to  be  returned  in  specie." 
Was  this  man  bound  to  return  the  precise  coins  he  received  ? 
As  I  read  the  evidence  such  supi)osition  is  expressly  negatived. 
I  must  say  I  do  not  understand  why  the  chairman  directed  tlu' 
jury  that  tiiere  was  no  evidence  that  the  man  was  servant  to  the 
prosecutor;  but,  however  that  may  be,  that  is  not  the  cpiestion 
for  us,  though  it  certainly  seems  to  me  that  the  man  was  author- 
ized to  sell  the  mare  in  the  ordinarv  wav;  that  his  action  wa:; 
not  interfered  with  by  the  wife,  who  never  objected  to  a  check 
being,  as  she  3ui)|K>sed,  cashed,  thus  shewing  that  he  was  not 
supposed  to  be  obliged  to  hand  over  the  ])articular  check  cm- 
particular  coins  he  might  have  received,  the  parties  consider- 
ing that  what  was  rocpiired  was  that  the  amount  received 
should  be  paid,  not  the  specific  coins. 

SMirrr,  J.  I  agree  with  tlie  majority  in  this  matter.  The 
difflculty  is  on  a  question  of  fact,  viz.,  whether  the  prisoner 
was  a  bailee  of  the  money  or  not.  I  think  tluM-e  was  some 
evidence  t^iat  ho  was  bound  to  hand  over  the  particular  money ; 


THE  QUEEN  v.  BRITTLETON. 


605 


the  wife  asks  for  tlic  money ;  the  prisoner  in  no  way  objects  to 

pay  the  money,  thoug-li  ho  will  not  and  does  not  do  it,  and  the 

jnry  may  have  found  all  those  statements  of  the  prisoner  about 

the  check  to  bo  entii-ely  untrue. 

Co>ivictio7i  afj'irmed. 

*   C.  D. 


TiiK  Qi:k!:x  v.  Bimttlktox  et  al. 

(12  Law  Rep.,  Q.  B.  Div.,  2G0.) 

Larceny  by  wife  of  husband's  property:  Evidence — Married  icoman's 

act. 

Upon  the  trial  of  a  married  woman  jointly  with  another  person  for  larceny 
of  the  property  of  her  husband,  the  husband  was  called  as  a  witness 
against  his  wife.  Held,  by  the  court  (Lord  Coleridge,  C.  J.,  Hawkins, 
Lopes  and  Mathew,  JJ. ;  Stephen,  J.,  doubting),  tliat  the  evidence  of 
the  husband  was  improperly  received,  and  that  the  conviction  which 
had  taken  place  founded  upon  it  was  bad  as  against  both  tlio  prisoners. 

The  following  case  was  stated  by  the  chairman  of  the  quar- 
ter sessions  of  the  county  of  Lancaster,  holden  at  Liverpool: 

"These  prisoners  were  tried  before  me  and  other  justices 
at  the  quarter  sef:sions  for  the  county  of  Lancaster,  held  by 
adjournment  at  Liverpool  on  the  IHth  of  Juiuuirv,  1S8L 

"  The  prisoners  Averc  tried  under  one  indictment,  charging 
them  with  stealing  certain  wearing  apparel,  household  goods, 
aiul  money,  the  property  of  Thomas  James  Ih'ittletou. 

"  The  indictment  also  contained  a  count  for  receiving. 

"  Thomas  Janu?s  Lrittleton  was  called  and  sworn  as  a  wit- 
ness for  the  prosecution,  and  stated  in  evidence  tliat  the  pris- 
oner, Maria  Jane  Brittleton,  was  married  to  him  on  the  3d  of 
July,  ISSO.  It  was  then  objected  by  counsel,  who  at  my  re- 
quest appeared  for  prisoner,  that  Thomas  James  Brittleton  was 
an  incompetent  witness  against  the  prisoner,  INIaria  J  ane  Brittle- 
ton,  on  the  ground  that  sec.  10  of  the  Married  Women's  Prop- 
erty Act,  1SS2  (45  and  40,  A^ict.,  c.  75),  did  not  directly  render 
the  evidence  of  a  husl)and  admissible  against  his  wife  in  the 
cases  in  which  she  was  subjected  to  criminal  proceeding  by  the 
same  section,  and  that  the  words  '  in  like  manner '  did  not 


coc 


Al^IERICAN  CRIMINAL  REPORTS. 


i     '4 


y  ";■ 


operate  to  make  the  husband  a  competent  witness  a^inst  his 
wife. 

"  "Without  expressing  any  opinion  as  to  the  validity  of  the 
objection,  I  decided  to  admit  the  evidence  in  order  that  the 
point  miglit  be  reserved  for  the  consideration  of  the  court  of 
criminal  appeal. 

"  The  evidence  of  Thomas  James  Brittleton  was  then  ad- 
mitted, and  the  case  proved  ^^'as  in  substance  that  the  prisoner 
]\[aria  Jane  Urittleton  and  the  prisoner  George  Bate  together 
left  the  house  of  the  witness  Thomas  James  Brittleton,  on  the 
29th  of  December,  1882,  taking  with  them  the  j^roperty  and 
money  mentioned  in  the  indictment. 

"  I  left  the  case  to  the  jury,  directing  them  that  if  they  Avero 
satisfied  that  the  prisoners  feloniously  took  and  carried  away 
the  property  mentioned  in  the  indictment,  they  were  both 
guilty  of  larceny.  The  jury  convicted  both  prisoners  of  lar- 
cen}',  and  the  court  sentenced  each  of  (hem  to  nine  months' 
imprisonment  with  hard  labor. 

"  The  questions  for  the  consideration  of  the  court  are : 

"  1.  "Was  the  evidence  of  Thomas  James  Brittleton  admis- 
sible against  his  wife,  the  prisoner  Maria  Jane  Brittleton? 

"2.  If  the  evidence  of  Thomas  James  Brittleton  was  im- 
pi-operly  admitted  aga'nst  his  wife,  can  -the  conviction  of  the 
prisoner  George  Bate  be  supported  —  the  two  prisoners  being 
jointly  indicted  ? 

"  If  the  lirst  question  be  answered  in  the  negative,  the  con- 
viction of  the  prisoner  Maria  Jane  Brittleton  is  to  Ix;  quashed. 

"  If  the  second  question  be  also  answered  in  the  negative, 
the  conviction  of  the  prisoner  George  Bate  is  also  to  be 
quashed." 

Loud  CoLKurooE,  C.  J.  I  should  have  been  glad  in  this  case 
to  have  had  the  assistance  of  the  argument  of  counsel,  since  the 
question  raised  is  one  of  general  importance  and  depends  upon 
the  meaning  to  be  given  to  a  statute  which  is  not  absolutely 
clear.  It  is  a  question  arising  upon  the  Married  "Women's 
Property  Act,  1882,  sees.  12  and  1(5. 

The  twelfth  section  enacts  that  every  woman,  whether  mar- 
ried beToye  or  after  the  act,  shall  have  in  her  own  name  against 
all  persons  whomsoever,  including  her  husband,  the  same  civil 


THE  QUEEN  v.  BRITTLETON. 


COT 


rcincdies,  and  also  (subject  as  regards  her  husband  to  the 
proviso  hereinafter  contained)  the  same  remedies  and  redress 
by  way  of  criminal  proceedings,  for  the  protection  and  security 
of  her  own  separate  property,  as  if  such  property  belonged  to 
her  as  a  feme  sole.  And  then  it  proceeds,  that  in  any  indict- 
ment under  the  section,  it  shall  be  sufficient  to  alleire  such 
property  to  be  her  property,  and  that  in  any  proceeding  under 
the  section  a  husband  or  wife  shall  either  of  them  be  compe- 
tent to  give  evidence  against  the  other.  It  is  difficult  to  say 
that  this  section  refers  to  a  case  in  which  the  husband  is  in- 
dicted ;  the  section  has  for  its  primary  object  the  protection 
and  security  of  the  sepai'ate  property  of  the  married  woman ; 
but  I  suppose  the  section  must  mean  that  where  there  is  an 
indictment  with  regard  to  the  wife's  separate  property,  cither 
may  be  competent  to  give  evidence,  so.  that  it  seems  as  though 
a  wife  could  give  evidence  against  her  husband. 

The  sixteenth  section  of  the  same  act*  provides  that  a  wife 
doing  any  act  with  respect  to  any  property  of  her  husband, 
which,  if  done  by  the  husband  with  respect  to  property  of  the 
wife,  would  nuike  the  husband  liable  to  criminal  proceedings 
by  the  wife  under  the  act,  shall,  in  like  manner,  be  liable  to 
crimluable  proceedings  by  her  husband.  Xow,  docs  that  make 
a  husljand  a  competent  witness  in  an  indictment  against  his 
wife  where  the  wife  is  charged  with  stealing  the  husband's 
property  ?  It  does  not  do  so  expressly ;  it  does  not  in  fact  so 
enact ;  but  only  says  that  the  wife  stealing  her  husbaiul's  prop- 
erty shall  be  liable  to  criminal  proceedings  just  as  the  husband 
when  he  steals  the  wife's.  I  cannot  say  the  matter  is  free 
from  doubt,  but  it  is  always  best  to  adhere  to  the  rule  by 
which  we  construe  the  words  of  acts  of  parliament  to  mean 
that  which,  in  their  natural  sense,  they  would  be  construed  to 
mean,  and  not  to  import  meanings  of  their  own,  or  words  of 
our  own,  into  acts  of  parliament. 

The  legislature  has  not  said  that  the  husband  may  give  evi- 
dence against  the  wife  in  cases  of  this  descrii)tion,  and  the 
law  apart  from  this  act  is  that  ho  cannot.  If  parliament  had 
altered  the  law  they  should  and  they  would  have  said  so ;  but 
they  have  not  said  so.  I  ani  therefore  of  opinion  that  the  evi- 
dence is  not  receivable  and  that  the  conviction  must  be  quashed 
against  both  prisoners. 


008 


AMERICAN  CRIMINAL  REPORTS. 


Hawkins,  J.  I  am  of  the  same  opinion,  and  only  wisli  to 
add  one  tiling,  viz.:  I  think  that  if  the  legislature  had  intended 
the  husband  to  become  an  admissible  witness  against  his  Avife, 
the  legislature  would  have  expressed  itself  in  clear  and  intel- 
ligible terms,  and  I  do  not  find  any  expression  in  clear  and  in- 
telligible terms  of  any  such  intention.  There  are  no  words 
making  the  husband  an  admissible  witness,  in  my  opinion. 
There  is  a  second  question  here —  whether  the  indictment,  being 
also  against  another  pei-son,  the  fact  of  the  woman's  husband 
giving  evidence  will  vitiate  the  conviction  as  against  such  other 
person.  The  case  of  Hex  v.  Smith,  1  Moody,  C.  C,  289,  ap- 
pears directly  in  point  in  this  matter,  and  there  is  another  case 
which  I  think  also  in  point,  7iV/.  v.  Thxympmn,  Law  Eep.,  1  C. 
C.  E.,  377,  and  these  cases  appear  to  me  to  shoAV  conclusively 
that  the  conviction  cannot  stand. 


LoPKS,  J.  I  also  think  that  if  the  legislature  had  intended 
to  make  so  great  an  alteration  in  the  law  the  legislature  would 
have  expressed  itself  in  unequivocal  terms,  and  that  it  certainly 
has  not  done. 


Stkphk.v,  J.  I  cannot  take  quite  tlie  same  view  as  has  been 
taken  by  my  lord  and  my  brothers,  llawkins  and  Lopes,  but 
at  the  same  time  I  cannot  feel  so  decided  an  o[»iiii<m  upon  the 
matter  as  to  induce  me  to  dissent  or  to  desire  an  argument  be- 
fore the  whole  bench  of  judges,  and  therefore  I  give  up  the 
opinion  to  which  I  am  rather  inclined.  Had  I  been  alone  to 
decide  this  nuitter  I  should  have  been  disposed  to  interpret  the 
section  thus:  The  husband  and  wife  shall  be  competent  to  give 
evidence  against  each  other  subject  to  the  general  rules  of  evi- 
dence, as,  for  example,  that  the  party  indicted  cannot  give 
evidence  at  all.  The  wife,  if  her  husband  is  indicted,  is  not 
denied  the  benefit  of  the  section  against  her  husband  if  he 
steals  her  goods,  and  it  seems  somewhat  odd  that  under  pre- 
cisely similar  circumstances  the  husband  should  not  be  able  to 
give  evidence  against  his  wife  should  she  steal  his  goods.  Then 
I  come  to  section  10,  and  that  says  that  a  wife  shall  be  liable  to 
be  prosecuted  if  she  does  anything  to  her  husband's  property 
which  would  render  her  husband  liable  to  a  prosecution  if  done 
by  him  with  regard  to  her  property.     This  I  should  have  been 


THE  QUEEN  v.  IIOLLIS. 


009 


dis])()stHl  to  siiy  nioant  subslantially  that  if  a  wife  is  to  bo 
prost'cutod  l»y  \wr  Jiusbaiul,  slio  is  to  bo  treated  in  a  similar 
■way  to  a  liiishand  i>i'oseciited  by  a  wife  for  any lliinji,' done  with 
i-esiK'ct  lo  lier  sepai-ate  property.  I  admit  that  siieli  a  view 
goes  somewhat  l)eyond  tlie  exact  words,  and  I  do  not  insist 
ni)on  my  (*\vii  view,  and  especially  as  in  this  jiarticular  case 
the  husband  and  wife  were  livin<^'  together  when  or  immedi- 
ately before  the  olfense  was  committed. 

Math  i;\v,  .1 .  This  conviction  must,  in  my  opinion,  be  quashed ; 
the  act  is  an  aci  lor  the  protection  of  tlie  wife  ancl  of  her 
projierty,  and  tlie  present  case  is  not,  in  my  judgment,  within 
the  act. 

Conviction  quashed. 


I 


The  Qukkn  v.  IfoLLis. 

(12  Q.  B.  Div.,  25.) 
Larceny:  rntpcrti/  itvucurLd  from  unuUter  hy  a  series  of  tricks. 

The  two  iirisoncrs  by  a  scries  of  tricks  fraudulently  induced  a  bar-maid  to 
pay  over  money  of  lier  master  to  tliem,  without  liaving  received  from 
them  in  return  the  proper  change.  Tlie  bar-maid  liad  no  authority  to  jiay 
over  money  witliout  receiving  the  pi-oper  diange,  and  had  no  intention 
of  or  knowledge  that  slie  was  so  doing.  Ilvhl,  b}'  the  court  (Lord  Cole- 
ridge, C.  J.,  Denman,  Hawkins,  Williams  and  Matliow,  JJ.),  that  the 
inisoners  were  properly  convicted  of  larceny. 

This  was  a  case  stated  by  the  chairman  of  the  Worcester- 
shire (piarter  sessions. 

"  At  the  last  cpuirter  sessions,  Tliomas  ITollis  was  tried  on  a 
charge  of  larceny  of  money,  the  property  of  Charles  Parkes. 
lie  was  indicted  jointly  with  AVilliam  Wicks,  who  pleaded 
guilty. 

"  The:  money,  the  subject  of  the  indictment,  Avas  obtained 
by  the  trick  commonly  known  as  'i-inging  the  changes.'  The 
prisoners,  IFollis  and  Wicks,  went  to  an  inn  kept  by'the  prose- 
cutor; Wicks  asked  the  l)ai'-maid  for  six-penny  Avorth  of 
whisky  — he  put  down  a  half  sovereign;  the  bar-maid  gave 
Vol.  IV— 39 


610 


AMERICAN  CRIMINAL  REPORTS. 


him  9.<f.  Or/,  change.  Wicks  then  said,  vDid  I  frivo  you  a  half 
sovoi'e.'i;n ?  I  wish  you  would  give  it  me  hack;  I  think  1  have 
change.'  The  bar-maid  gave  him  the  half  sovori'igii,  but  he 
did  not  return  the  9*.  Cu7.  At  that  moment  the  other  prisoner. 
I  loll  is,  asked  for  a  cigar,  which  the  l)ar-maid  gave  him.  Il(^ 
handed  her  a  shilling  in  payment,  and  she  retuDied  him  the 
change.  "Wicks  then  gave  the  bar-maid  l(>.y.  in  silver  (J).v.  M. 
of  which  was  the  change  she  had  previously  given  him)  and  a 
half  sovereign,  and  asked  her  to  give  him  a  sovereign  for  it. 
She  took  the  money  to  her  mast(>r  and  rec(Mved  from  him  a 
sovereign,  which  she  gave  to  Wicks.  Wicks  then  asked  her  to 
fasten  his  glove,  u])on  which  TloUis  remarked,  '  Isn't  he  fussy.' 
The  two  prisoners  then  left,  ami  in  a  few  minutes  afterwards 
the  bar-mai<l  discovered  the  fraud.  The  bar-maid  stated  in  her 
evidence  that  she  did  not  intend  to  part  with  Iw.v  master's 
money  excej)t  for  full  change  of  the  prisoner's  money,  and  her 
master  also  stated  in  his  evidence  that  she  had  no  authority  to 
part  with  it  except  for  full  consideration. 

"  It  was  contended  by  couns(;l  for  the  ])risoner  that  the  bar- 
maid had  general  authority  to  act  for  her  masfer  in  such  a 
matter  as  giving  change,  and  that  the  transaction  was  com- 
plete before  she  discovered  the  fraud;  therefore  that  the  proj)- 
erty  in  the  money  had  passed,  and  that  the  priscmer  could  not 
be  convicted  of  stealing  it. 

"After  referring  to  /Ay.  /•.  MiK<ih\  Law  Kep„  1  C.  (\  17. , 
12.');  ;J7  L.  .1.  (M.  C),  1)7,  and  /Ay.  r.  Mldillrfon,  I  v  '  p.,  l> 
C.  0.  II..  ns;  42  L.  J.  (M.  V..),  7:5,  1  overruled  .,.rtion. 

and  the  jury  fcjund  the  prisoner  guilty;  and  in  iv  to  ques- 
tions put  by  me,  also  found  specially  that  the  bar-iniid  lijnl  no 
intention  to  part  with  the  pi'o])erty  in  the  sovereign  exc(\  I  for 
full  change  of  the  ])risoner's  money,  and  that  her  master  had 
given  her  no  authority  to  part  with  it  for  other  than  full  con- 
sideration." The  (piestion  reserved  for  the  consicUu'ation  of 
the  court  was,  whether  the  prisoner  was  properly  convicted  of 
larceny. 

A.  F.  Go(Is(m,  for  the  prosecution,  submitted  tliat  liq/.  v. 
Middldon.  Law  Rep.,  2  C.  (\  !{.,  ;58;  -t2  L.  J.  (M.  C),  73,  was 
decisive  of  the  present  case,  and  that  the  finding  of  the  jury, 
that  the  bar-maid  had  no  right  to  part  Avitli  the  property, 


FE0M8  r.  O'BRIEN. 


(!11 


I  a  half 
k  1  liiivc 
1,  but  lie 
|)ris()n(M'. 
im.     Il(^ 
him  the 
I-  (t).v.  Cul 
n)  ami  si 
;n  for  it. 
Ill  him  ii 
'd  her  to 
10  fussy.' 
terwai'ds 
0(1  in  her 
master's 
,  ami  her 
hority  to 

;  the  bar- 
u  such  a 
was  com- 
the  proj)- 
ciouhl  not 

c.("  i;. 

'V  '  p.,  2 
jection. 
y  to  qncs- 
1(1  1i;m1  no 
;x(;c  I  for 
aster  had 
I  full  con- 
U'ation  of 
nvicted  of 


it  licfj.  r. 
'.),  n,  was 

the  jury. 

property, 


coui)lc'd  with  the  fact  that  she  never  intended  to  do  so,  pre- 
vented any  dilliculty  as  to  the  conviction. 
No  ccumsel  appeared  for  the  prisoner. 

Loiii)  (Joi.KiMiuiK,  \j.  (J.  .1.  I  cannot  see  if  a  person  goes  into 
a  place  and  fraudulcMitly,  by  a  series  of  tricks,  obtains  posses- 
sion of  propci'ty  from  another  which  that  other  lias  no  inten- 
tion of  parting  with,  how  the  offenses  can  fail  to  bo  larceny. 
It  is  clearly  stealing,  and  the  conviction  must  boaifirmod. 

1)k.nma_n,  Hawkins,  Williams  and  Matiiew,  J  J.,  concurred. 

Conviction  affirmed. 


FkOMS    KT    at..,    AlM'KLT.ANTS,    V.    O'BlJIKX. 
(tl  Law  Rep.,  Q.  B.  Div.  21.) 

Lauceny  :  Water  stored  in  pipes. 

Water  siipi)lie<l  by  a  water  coinpiiny  to  a  consunier,  ami  standing  in  his 
pijKJS,  may  be  tlie  sub  jet.t  of  a  larceny  at  common  law. 

(Jaso  stated  by  justices  under  20  and  21  Vict.,  cli.  4,  and  42 
and  43  Vict.,  ch.  4'.>.  At  the  hearing  of  an  information  before 
two  justices  of  the  county  of  Durham,  charging  the  respond- 
ent with  having  feloniously  stolen,  taken  and  carried  away 
two  buckets  of  water,  the  property  of  the  aj)pollants,  and  of 
the  value  of  \(1.,  it  was  proved  that  the  a])pellants  wore  the 
ownei's  of  a  colliery  in  the  county  of  Durham,  which  was 
luipjilied  with  water  by  the  Wcardale  &  Shildon  AVater  Com- 
pany, Limited;  that  the  colliery  being  out  of  the  district  in 
which  the  water  comi)any  were  authorized  to  supjily  water  by 
their  act  of  parliament,  a  motor  was  placed  upon  the  water 
(•om])any's  ground,  and  the  water  was  brought  from  the  meter 
to  the  colliery  by  moans  of  underground  pipes  laid  down  by 
the  api)ellants ;  that  the  water  was  then  supplied  to  houses 
occupied  by  the  appellants'  workmen  by  means  of  branch 
l)il)es,  to  which  taps  were  attached,  the  workmen  being  allowed 
to  take  watei-  from  the  taps  on  payment  of  a  fixed  price,  and 
that  the  resijondent  was  seen  to  take  the  water  in  question 


C12 


A]MERICAN  CRIMINAL  REPORTS. 


from  one  of  the  taps  without  having  agreed  to  pay  for  the 
same. 

The  respondent  having  pleaded  "  not  guilty,"  and  desired  to 
i)i'  dealt  with  summaril}'^,  the  justices  declined  to  convict  her  of 
the  otrense  charged. 

The  (piestion  of  law  for  the  opinion  of  the  court  Avas  whether 
or  not  water  could  be  the  subject  of  larceny  at  common  law. 

E.  Il'idU'ij,  for  tlie  .appellants,  was  not  required  to  argue. 

Gi'(iii<i>i\  for  the  justices,  contended  that  water  could  not  l>o 
the  subject  of  hirceny  at  comnum  law,  and  that  this  contention 
was  su[)ported  by  the  fact  that  the  legislature  had  thought  it 
necessary  to  impose  statutory  penalties  for  the  taking  of  water 
from  ])i|)es  bohtnging  to  water  eom})anies  by  lo  ami  11  Yict., 
ch.  IT,  sec.  5t>,  anu'uded  by  2(3  and  27  Vict.,  ch.  "j;>,  sec.  IG. 

The  court  (Fiki.d  and  Matukw,  JJ.)  were  of  opinion  that 

water,  under  the  circumstances  and  in  the  condition  described 

in  the  case,  could  be  the  subject  of  a  larceny  at  comnu)n  law, 

and  they  directed  the  case  to  be  remitted  to  the  justices  with 

a  statement  of  this  o[»inion. 

Case  reiiiitted. 


IJiDEX. 


ABDUCTION.  , 

1.  Persox  abducted  cojtPETENT  WITNESS  FOR  STATE.— On  trial  of  ati  in- 

(lictiiu'iit  i'dv  unliiwi'ully  conveying  or  takiii;^  away  a  woman  child 
UHilcrtlu'  a,i;(>  ol'  lil'ti'cn  years,  with  intent  towiluic,  i»tc.,nn(ler  section 
H'J  of  tlic  crinu's  act  (New  Jersey),  she  is  a  competent  witness  to  tes- 
tily on  heliail' of  the  slate.     Sliitcv.  Gordon,  1 

2.  Same  —  .TrmwDicriON  of  offense. — If  the  defemlant  bronsht  her  within 

this  stiile  troni  another,  and  herewith  the  intent  set  ont  in  the  statute, 
iMterjKised  his  will  or  ])ersuasion  between  lier  and  her  Rnardian's  con- 
trol, so  as  to  overcome  her  intention  to  return  to  her  home,  the 
abduction  is  accomplished,  and  lie  may  be  indicted  in  this  state.      Id. 


ABORTION. 

NoxTors  NATt'RE  OF  Dr.rfis. —  The  Uiins  administered  or  prescribed  to 
i)ro(ure  llie  miscarriage  of  a  woman  tlien  ])re;;iiant  with  child  must 
be  noxious  in  its  natun>:  but  it  is  not  necessary  to  prove  that  it  will 
]n-oduce  that  elTect.     State  r.  Gcdickc, 

DEsciMiUNd  THE  OFFENSE. —  An  indictment  wliich  alleges  that  the  de- 
fenihiiit  unlawfully  useil  an  instrument  with  intent  tojirocurea  niiscar- 
riaije  of  a  woman  named,  and  which  di^st'rilies  the  instrument  and  the 
nianai'r  in  which  the 
Vorkiii, 

Evidence  as  to  riuou  acts.— Acts  of  the  defendant  at  other  times  may 
be  shown  as  tending  to  jaove  the  intent  of  defemlant.  and  if  competent 
to  prove  the  crime  charged,  it  is  no  objection  that  it  also  tended  to 

t hel'  *'i'iiin's  -* ^'* 


defendant    used    it,    is    snlUcient. 


6 


Com.  V. 
15 


prov( 
Declarations  t< 


crnnes. 
pliysicians  touching  pregnancy,  see  Evidence,  8  and  9. 


ADMISSIONS  AND  CONFESSIONS. 

1.  Al>MlS:^toNS.— It  is  not  erroneous  to  instruct  tlie  jury  that  "  admissions 

'  made  in  ordinary  or  random  conversations  are  not  generally  considered 

in  law  as  satisfaltory  proof."'    State  of  Iowa  v.  Iioiioraii,  25 

0  CoM-Ks^inN  JtADE  fNDER  pifOMiSE.— Tlic  shcrillf  and  state's  attorney 
tallied  with  the  respondent  while  in  jail.  Tliesheritf  first  testified  that 
no  induciMncnls  to  confess  were  held  out.  but  afterwards  said  "that  he 
iire-mned  he  and  the  state's  attornev  both  told  the  res|ioiident  Jt  would 
be  hetter  for  her  to  t"ll  the  whole  story,  and  the  punishment  ^^'mld  be 
lihely  to  be  lighter."  Ildd,  that  his  tcBtiuiony  was  not  adunssible. 
Stair  i'.  Daij,  !"•* 

8  SvMl'  —  When  there  is  no  conllicting  testimony  as  to  what  the  induce- 
mi'iit  was,  the  decision  of  the  court  below  may  be  reversed  by  the  sti- 
liiH'ine  court.  ^ 

4     CoNI'i-'-SlON  OP  ACCUSED.  WHEN   ADMISSIBLE  AGAINST  HIM.— The  aduiis- 

si'bihlv  of  a  confession  of  guilt  is  addressed,  in  the  first  instance,  to  tho 
discretion  of  the  court.    It  umst  bo  subjected  to  careful  scrutiny,  and 


t)14 


AMERICAN  CRIMINAL  REPORTS. 


reooivorl  Avith  preat  caution.  When  freely  and  voluntarily  mado,  it  ia 
evi(l«>nco  of  tlio  most  satisfactory  chaiactcr,  but  tlic  ])rcsuni].tion  upon 
wliich  wci,<;lit  is  given  to  such  evidence,  namely,  that  one  wlio  is  iinio- 
ccnt  will  not  imperil  his  safety  or  j)re,judico  his  interests  by  an  unlrue 
statement,  ceases  when  the  confession  apjiears  to  hav*>  been  made  eitlier 
in  cDnseciuence  of  inducements  held  out  by  one  in  authority  tonciiing 
the  cliaiKO  ]>referred,  or  because  of  a  threat  or  jironiise  by  or  in  the 
juesenc*.' of  such  jjcrson,  with  reference  thereto.     Ihqtt  w  Utah,      417 

Rules  regulatinj^  the  adinissil)ility  in  evidence  of  the  declarations  of  an 
injin-ed  jtarty  respectinj;  his  injuries.     Doirlcn  r.  The  Slate,  49 

ADULTERATION. 
See  Habeas  Corpus,  ;}.    C'onstitltion'at,  Law,  10,  11,  13,  13. 

ADULTERY. 


1. 


8. 


Adultery  effkctf.d  by  force. —  To  constitute  tli(>  crime  of  adultery  as 
against  the  num.  the  conscMit  of  tiie  woman  to  tlie  carnal  intercourse  is 
not  indis|jensuble.  but  the  odeiise  may  I'xist  as  against  him.  though  the 
connection  was  elFected  by  force  and  against  her  will.  State  v.  Donn- 
faii,  25 

2.  Institution  of  prosecution  for,  by  husband  or  wife.—  Under  a  statute 
which  provides  tiiat  no  pros<'culion  can  lie  connnenced  but  on  tlu'  com- 
plaint of  the  husl)aiid  or  wife,  appearing  i)efore  tlie  grand  jury  as  a  wit- 
ness in  olx'dience  to  a  subjxena,  is  not  a  sutlicieiit  c<)mpliance  with  tlie 
reiiuin^meiits  of  tlie  statuti'  to  autiiorize  a  conviction  of  tiie  (U^feiidant; 
biu  it  is  not  incumlpcnt  on  the  state  to  establisii  the  fact  of  the  insti- 
tution of  the  j)ro;iecntion  by  tlie  husband  or  wife  beyond  a  reasonable 
doubt.  /(/. 

Otiii:r  acts  of  Aini.TERY. —  Tlu>  rule  of  law  is  that  where  the  charge  is 
of  one  act  of  adultery  only,  in  a  single  count,  to  wjiii-h  evidence  has 
been  given,  the  jirosecution  is  not  permitted  alterwards  to  introduce 
evidence  of  other  acts  committed  at  different  times  and  places.  /(?_ 

4.  Coiiabit.vtion. —  Sexual  intercourse  betw(>en  persons  not  married,  though 
living  in  tlie  same  house,  is  not  siilllcient,  alone,  to  con.stitiitc  the  od'ense 
of  cohabiting  together  as  husliand  and  wife  without  being  maiTied. 
Taylor  v.  The  State,  'M 

ALIBI. 

Burden  of  proof  not  oiianoed.—  The  burden  of  proof  is  not  changed  in  a 
criminal  case,  when  the  defendant  undertala-s  to  prove  an  atihf,  and 
if,  by  rea.sou  of  the  evidence  in  relation  to  such  alibi,  tlie  jury  shoul(i 
doubt  the  defendant's  guilt,  he  is  entitled  to  an  acipiittal,  altbougli  the 
jurv  may  not  be  al)le  to  sav  that  th»'  alibi  is  fully  prov<;d.  ]\'aiter.'<  v. 
The  State,  '  83 


APPEAL  AND  WRIT  OF  ERROR. 


1. 


When  an  api)eal  or  writ  of  error  will  lie  in  behalf  of  state.  Taylor  v. 
The  State,  ;J0 

If  there  be  no  specilic  jirovision  in  the  charter  of  a  city  (in  this  ciuse 
the  city  of  Leavenworth)  concerning  appeals,  where  the  line  is  !>2(>or 
leas,  sui'h  right  may  be  toiiiid  under  tiu;  laws  regulating  the  proceiMl- 
ings  in  justices'  courts  in  criminal  cases,  and  in  that  event  the  peti- 
tioner would  be  entitled  to  his  ai>|H<al  ujion  tiling  a  proper  boiul.  //( 
re  Jiolf.%  440 

Same.  —  The  appeal  l«Miig  formally  denied  by  the  police  judge,  the  fail- 
ure f<  furnisn  the  bond  should  not  prejudice  the  petitioner,  if  he  supply 
the  omission  promptly.  id. 

Appellate  coui't  will  dismiss  appeal  of  escaped  convict,  see  Practice,  7,  8. 

Writ  of  error,  certiflcate  of  division,  etc.,  in  United    States   courts,  see 
Practice,  9,  10. 


3. 


INDEX. 


G15 


ARREST. 

1.  KirxTNO  OF  opncEB  — Wantof  kxowlkdoe  op  his  official  character 

reduck;  ('i;i.me  to  MANSLAuaiiTER.  — A  peace  ofKc-er  has  the  riglit  to 
an-est  oiu;  who  is  comiuitthig  a  breivch  of  tlia  jjeaee  in  his  presence,  and 
to  UHt,'  Hiich  lorct;  as»is  iiecessavy  to  make  it;  ami  if  tlio  person  so  dis- 
turbing; the  iwaco  knows  that  the  person  attempting  tlie  arrest  is  an 
orticer,  and  kills  liini,  it  is  murder;  if  he  does  not  know  the  fact,  it  is 
maaslaugliter.     Fleetwood  v.  Com.,  !50 

2.  Arrest  by   private  person.— Whore  a  felony  has  been  committed, 

and  there  is  good  cause  to  believi;  that  a  certain  party  committetl  the 
same,  a  private  person  may  arrest  such  party  until  a  waiTant  can  hv 
procured.    Siinmerman  v.  flic  State,  91 

Arrest  of  defendant's  witness  in  presence  of  jury,  see  Witness,  5, 


ARSON. 

To  BURN  one's  own  HOUSE  WHEN  RIGHTFUIXY  IN  POSSESSION,  NOT  ARSON. 

Our  statute  has  not  changed  the  delinition  of  the  crime  of  arson  as  given 
by  the  comuion  law  —  the  wilful  and  malii'ious  bvtrning  of  the  dwelling- 
house  of  another;  Ikmicc.  when  one  burns  the  dwelling-house  that  he  is 
lawfully  occupying,  in  legal  sense,  it  is  not  arson;  for  arson  is  a  crime 
against  tlie  security  of  the  dwelling-house  as  such,  and  not  as  property. 
State  V.  Haniiett,  38 

JIOTIVK  JIAV  15E  SHOWN. —  To  prove  that  the  respondent  had  a  motive  for 
burning  tiie  Imilding  evitlence  was  admissible  to  sliow  his  ill-feeling 
and  its  intensity  towards  his  wife,  who  had  an  interest  in  it;  but  not  the 
cause,  merits  ah(l  conseipiences  of  the  (iiuu-rel;  hence,  it  was  error  to 
admit  proof  tl  at  llu!  wife  had  procunnl  a  divorce  for  intolerable  severity; 
that  the  respondent  had  Ihh'U  restrained  by  injunction  froni  inflicting 
personal  almse  upon  her;  and  that,  subsecpiently,  the  mamage  was 
annulled  on  the  ground  of  bigamy.  T<f- 

VAHiANcr.—"  ADJOINING,"  "  AnJACENT  TO,"  ETC.— Au  indictment  charg- 
ing thai  the  respondent  attempted  to  set  lire  to  an  out-building,  adjoin- 
ing a  (l\velling-h<mse,  is  not  supported  by  evidence  that  the  bviilding 
was  near  to,  but  not  in  c-ontact  with,  the  dwelling-house.  State  i\ 
Dou-iit^,  ^'^ 

law  and  under  the  statute.     The  State   v.   Ful- 

43 


4. 


Arson   at 
ford, 


common 


/VSSAULT. 


1.  Aggravated  assault  of  teachf.ii  upon  a  pupil— Evidence.— The 
iirosecution  for  aggravated  assault  was  based  upon  a  chastisement 
inflicted  by  an  adult  school  teacher  ui)on  an  infant  pupil.  The  prose- 
cution was'  jicrmitted.  over  the  objection  of  the  defense,  to  prove  that 
tlie  i)ui)il,  two  or  three  nights  after  the  chastisement,  told  his  father 
that  he  coidd  not  sleep,  because  his  hi|)s  were  so  sore  it  pained  him  to 
turn  in  bed.  Held,  that  this  declaration  was  made  too  long  after  the 
injury  to  be  admissible  in  evidence.    Dowlen  v.  The  State,  49 

'>  Same  —  Rules  regulating  the  admissibility  in  evidence  of  the  declara- 
tions of  un  injured  party  re^4)ecting  his  injuries,  stated  and  discussed. 

!1  Same  —  Sim>  the  statement  of  tiie  case  for  special  instructions  requested 
which,  embodying  corr.-ctly  the  law  applicable  to  the  facta,  were  irn- 
proiwrly  refused  in  the  trial  of  a  teacher  for  chastising  lua  pupil.    Id. 


GIG 


W 


AMEPJCAN  CRIMINAL  REPORTS. 
ASSAULT  WITH  INTENT  TO  MURDER. 


ASSATTT  TO  MrUO::!!  A  PF.KSOV  OTHER  THAN'  THE  ONE  INTKXOED,  Oil 
WITKOI'T   INTKXT   AS  TO  ANY   rAUTIClTAU  OXK  —  RECKLESSNESS  — (JeX- 

EUAI.  MAi.ici:.— Wlicrc  a  ixtsoii  di'libt'i-iitoly  wlioots  at  A.,  and  in  the 
direction  of  1?.,  ami  tlu'  ball  misses  A.  and  strilces  H.,  inflictin.LC  a  wound, 
these  lacts  will  siiHicient ly  show  the  intention  ol'  tlu;  person  shootin;.;; 
to  kill  and  murder  [{..  aUliou;;li  he  has  no  actual  nialiee  or  ill-leriinj;- 
tow.-ird  B.,  and  lie  may  be  convicted  of  an  assiuilt  upon  B.  with  intent 
to  kill  and  murder  him.     Dinitiniji  v.  Tlir.  People,  GO 

The  INTENT. —  Where  an  act,  unlawful  in  itself,  is  done  with  delibera- 
tion and  with  the  intention  of  killinn'  or  inllictiiijj;  s(>ri(ius  boilily  harm, 
though  the  iiitentioi)  be  not  directed  f  o  any  particular  jierson.  and  death 
ensue,  it  will  lie  murdei'  at  common  law.  Thus,  if  a  |)arty  lircs  a  j;'""- 
shot  into  a  ci-owd  of  jiei-sons  with  intent  to  miuMler  some  one,  or  when 
it  is  done  with  criminal  rei-klessness,  the  killin;^  will  be  nnirder,  al- 
though no  intentina  exisfeil  to  kill  any  partitailar  lu'rson.  /</. 

lyiAT.TCE  T>n'I,li'l>. —  Where  one.  without  provocation,  dis(har.u;eil  his  ]>is- 
tol  directly  at  a  i;roup  of  ptTsons.  it  matters  not  what  |)erson  he  in- 
tended to  I.ill;  or  ii'.  under  such  circumstanc<'s,  he  shoots  a  person 
(>thertiian  tlie  one  intended,  the  act.  from  its  recklessness  and  want  of 
provocation,  will  be  referr<' 1  to  no  other  cause  than  malice.  Such  rei'k- 
less  acts  imjily  j^eneral  malice.  Jd. 

Insanity  AS  A  DKEENsi;  — .\s  to  the  ti'.st  of  lU'sroxsimi.iTY. —  Whore 
roasf)n  and  judi;iueMt  ar.' not  overcome,  but  the  iierson  charj;'ed  with 
crime  at  the  lime  retains  the  power  to  choose  between  rij^iu  aibl  wronj.;' 


as  t<*  the  pai'ticiilar  a' t   doiie.  he  (•.■mnot  escajie  responsll 
acts  under  the  plea  of  insanity.     I>inia  r.  The  People, 


lltv  for 


his 

,12 


So  if,  at  the  time  .a  dcidly  assault  is  made,  the  person  makin.;  the  .as- 
sault kntwi'-at  it  was  wron.L;-  to  counnit  such  an  act.  and  had  the 
power  of  mi:  .1  to  chuo-c  either  to  do  or  not  to  do  it.  and  ol  controllin;;; 
his  <()iiducl  in  accoriiance  with  such  choit'c,  ho  will  Ih;  held  anienabi(- 
to  the  law,  altliou;j;li  he  w,is  not  eiilirely  and  [lerfeclly  j;ane.  Id. 


AUTIIEFOIS  ACQUIT— AUTREFOIS  (X)XVirT. 
What  niKNTiTY  of  the  offkxsks  chauoei)  is  neckssaky  TO  srri^tRT 

THE  n.EAS  Ol'  Al  TKEl'dlS  CONVICT  AND  OF  ACTltEFolS  AC(,H  IT.—  Proof  of 
a  din'cri'nt  (  I'ime  iVoiii  the  one  cliarj;'ed.  thon.Lih  generally  objiM-tionable. 
is  aduiissihlc  when  both  oll'elises  JU'e  closely  linked  or  comieclcd,  espe- 
cially in  tlie  rex  (/exlir,  and  also  when  such  pi'oof  is  pertinent  and  nec- 
essary to  show  intent.     .S7i'/*'  i\  I'iiien  ft  III.,  j>!)0 

P'oU.MEIt  ACijl  ITTAE- W'METIIEll  A  IIAU  TO  A  RECONII  TOOSECFTIOX — 
JriilSDICTloX    ESSEXTIAI.  —  l''oi::«IE|{    AC(jriTTAI,  IN  ANoTHI'.k  colXTV. — 

The  trial  and  a'i|uitt:d.  in  one  county,  of  one  ch;ii';j:ed  with  receiv- 
ing'stolen  j;o(ids,  knowin;;' tiiein  to  liaxc  been  stolen,  is  no  ii.n'  to  an 
indiciment  for  t!ie  same  olfeMse  in  a  diilVrent  county,  uidiss  it  shall 
aj)pear  tluil  the  i.U'ense  was  committe  I  in  the  county  in  which  the  ac- 
uniltal  wMs  had.  so  as  to  .nive  the  circuit  court  of  that  conr.ty  Jmisdic- 
tion.  An  acquittal  of  a  crime  by  a  court  havinjj;  no  jurisdii  tinn  is  no 
bar  to  a  pro;,. •cut ion  for  the  same  oll'ense  in  a  court  havinj;  Jurisdic- 
tion.    Ctdiiplii  II  L'.  'I'lie  J'eojile,  ;i;jH 

The  <;'ener,d  rule  at  r-omtnon  law  is.  that  an  acipiittal  in  one  co'.nity  can 
only  be  pie  ided  in  the  s!im(^  <'ount,\ ,  for  the  reason  that  all  indictments 
are  local ;  and  if  tbi' lirst  is  laid  in  tlH>  wroii;;'  county,  the  defendant 
cannot  i>e  found  guilty,  and  could  not  liavo  been  in'  le;;';il  jeopardy. 
To  this  rule  there  are  a  tew  exceptions,  as,  in  larcony,  and  in  (^aso  of  a 
chaii.ne  of  venue,  as  in  this  stati'.  "  Jd. 

Samu  —  Former  AcyrirrAi..  to  he  a   iiar,  mi'st  have   uekn  in  kf.- 

SI'ECT  TO    THh;    SAME    IDENTICAL    OFFENSE- .VXI)    Till',     I'I.EA    Ml'ST  SO 

SHOW. —  To  maku  u  plcu  of  a  former  ucijuittal  or  conviction  a  bur  to  a 


-  Wlioro 

p'll  willi 

111  wroiijj; 

V  for  liis 

Cy2 


INDEX. 


017 


RproTiil  iiiilictmpiit.  jironf  of  tli;^  facts  nllosP'I  in  tho  soroivl  must  l)n 
siillii'i(>nt  111  law  to  have  warrautfil  a  corivictinn  upon  tlio  first  iiidift- 
nioiit  of  tlii'  sami'  olfeuso  (•liiir;,^!!!  in  tlic  .•iccorHl  one,  and  not  of  a  dif- 
i^civnt  o(ri'iis(-  and  tliP  jil.-a  must  show  tliat  tlio  offense  c'iiartjc  I  in 
liolh  cases  IS  the  same  in  law  and  in  fact,  and  tlie  question  nmst  lie  de- 
termnied  l)y  tiie  facts  appearing  from  tlie  record,  witliout  tiie  aid  of 
extrmsic  circumstances.  7,;_ 

r>.  Same  — Op  a  plea  op  former  acquittal— Its  rkqitisitrs.— A  plea 
of  an  aiMpMttal  of  tlie  same  olfenso  in  a  different  countv  is  defective, 
in  sul)stance,  if  it  fails  to  show  that  tlie  court  of  suclf  other  county 
had  in  some  le.L^al  way  a<;(£uir(!d  jurisdiction  of  the  snhject-matter,  and 
how  such  Jurisiliction  was  acquired,  as,  liy  a  chan^^e  of  venue,  or.  in 
case  of  lurceay.  by  the  defendant  haviui,^  taken  the  stolen  i>roi)ertv 
into  such  comity.  j  j. 

(5.  Samk  — A  I'l.i'.A  Mi-ST  answer  all  it  rROFi-ssES.— a  Kjiecial  plea  (as 
a  I'ormer  aciinittal)  to  an  indictment  coiitaiiiinj;  several  counts,  if  it 
fails  to  answer  any  one  count,  is  had  on  ileniurrer.  Id. 

T.  Upon  the  trial  of  r?.  as  accessory  before  the  fact  to  the  murder  of  IT., 
evi<Ience  was  received  as  ))art  of  C'.'s  testimony  tendiiij;-  to  ])rove  the 
alle.ixation  of  the  indictment  that  G.  murdered  li.,  and  i'or  no  other 
purpose:  JhIi}.  that  as  ils  comiietency  for  that  purjiose,  and  its  iiicom- 
jietency  for  any  other  pnrpo-c.  were  distinctly  declared  by  the  cimrt 
when  it  was  nceived,  there  was  no  error.      State  l\  Buzzdl,  iW 

H.  Samk  — ^rKR(!KU.— If  the  defenilant  was  in  fact  both  a  principal  ami 
an  accessory,  and  if,  in  l;iw.  on  the  i)lea  of  former  conviction,  he  could 
not  be  convicted  of  eitlier  crim(>  after  he  had  been  convicted  of  the 
other,  he  could,  on  the  jilea  of  not  ,!:;iiilty,  be  convicted  of  either  where 
he  had  been  previously  convicted  of  neither.  Jri, 

Indecent  assault  on  female  child,  see  K.vi'K,  1. 

See  BuuiiLAKV,  ;J.    Jkoparoy.    Jurisdictiox. 

bastardy. 

CrlST  OP  OI'FKNSr.  IS  THE  REFUSAL  OF  THE  PUTATIVE  FATHER  TO  OIVE  ROXD. 
The  n'ist  of  the  oir"iise  of  bastardy  is  the  refusal  of  tlie  |)ulative  father 
to  ni\<'  bond  for  the  siii)port  of  the  child.  A  prosecntion  for  bastardy 
is  a  spi'cies  of  ]iroti'ctive  measure  to  ]iri'veiit  counties  beconiiiiL;cliar;;e- 
able  with  ]iaiiper  bastards.  Therefore,  the  I'onnty  to  which  the  bastard 
is  likely  to  become  chargeable  lias  Jurisdiction  of  a  bastardy  case,  and 
not  the  countv  in  wliich  the  child  was  beyolten  or  born.  ]\'illi<niis  r. 
The  Slate,      "  05 

bi()a:siv. 

1.  iNincTMlWT. —  An  indictment  for  bij^amy  drawn  in  the  lan;;uaj,^e  of  the 

statute  is  suliicieiit.     Slate  r.  (loKee.  (iS 

2.  Evii>i';\('i;. —  On  a  trial  I'or  bi-amy.  the  state,  to  (irove  the  first  mar- 

riaire.  ;;ii\e  evidence  that  defenilant  and  the  woman  lived  toju'ether  and 
held  ihemselves  out  to  the  world  as  man  and  wife  for  years:  that  they 
had  a  family  of  cliililren  li\  iii,^  with  them  as  their  children:  tliatshe 
had  si.nned  ami  acknnwleil.ucl  deeds  as  his  wife:  and  that  alter  the 
l)ij;-;unons  niarria.^e  she  had  sued  for  a  divorce,  he  had  answered,  and 
the  conit  had  H'nnited  her  a  divorce.  Ilcltl,  that  this  evidence  was  all 
competent.  1(1. 

3.  Parol  evidence  is  admissible  to  show  that  a  paper  ofTored  as  a  certilied 

copy  of  a  decree  is  a  foi'K'er.v.  Id, 

BILL  OF  E.Xf'EPTIONS. 

Unless  instructions  are  einliodied  in  the  bill  of  exceptions,  the  supremo 
court  cannot  judge  of  their  allegod  error.    Clmiuey  v.  The  State,    204 


618 


AMERICAN  CRIMINAL  REPORTJ. 


BRIBERY. 

1.  Indictment  not  bad  for  uncektainty. —  An  indictment,  under  section 
6000,  Revised  Statutes,  which  charges  that  delendant  C()rrui)tly  olTeied 
and  promised  to  B.,  amend)er  of  the  liouso  of  represeutativis  of  tiio 
general  assembly  ot  tlie  state,  with  the  intent  corruptly  and  feloniously 
to  infiuenee  his  vote  u[)on  a  certain  bill  then  pending  in  siu:h  house, 
"a  valuattle  thing,  to  wit:  stock  of  the  Cinciimati  Union  Rjiilwivy 
Comi)any,  of  the  amount  and  value  of  $20,000,  and  a  huge  amount  of 
money,  of  great  vaUu',"  is  not  bad  for  uncertainty.  It  ts  not  necessary, 
in  addition  to  such  allegation,  to  recite  the  facta  which  give  the  tidng 
offered  a  value,  nor  to  charge  that  a  delinite  sum  of  money  was  offereil. 
Watson  V.  State,  71 

8.  Same  —  That  defendant  was  a  mesiber  of  the  housr.—  A  single  count 
in  such  indictment,  which  charged  that  B.  was  a  member  of  the  house, 
and  also  a  member  of  a  standing  connnittee  of  such  house,  to  which  the 
bill  was  refen'(;d,  and  that  the  olfi-r  or  jiromise  was  mad(!  to  iniluenco 
his  vote  tlierefor  in  the  hoiise,  and  his  vote  for  a  favorable  rej)ort  thereon 
in  the  CDmiuittee,  is  not  bad  for  dui)licity.  The  charge  thus  made  con- 
stitutes but  one  offense  under  the  statute.  Id. 

3.  iNSTRt'CTiON  AS  TO  VALUE  OF  THING  OFFERED. —  To  charge  the  jurv,  in  a 

trial  iqion  such  indictment,  tliat  the  thing  ofTcnnl  or  ])roinis('(l  imist 
liavi-  a  value  at  the  very  time  it  is  olFered  or  promised,  and  while  (Ins 
bill  is  pending,  is  error,  but  not  to  the  ]>rejiidice  of  the  defenihint.  It  is 
a  crime,  under  sectii>n  (i'.WM).  to  offeror  promise  a  thing  valuable  at  that 
time,  or  whicii  will  be  valuable  when,  according  to  the  promise,  it  is 
to  be  given  or  delivered,  IiL 

4.  Variance  not  fatal. —  The  indictment  in  this  case  alleged  that  the 

sum  of  ^;>(M)  was  paid  to  plaintiff  in  error  as  a  l)ribe  l)y  one  C.  B., 
"ami  otiiers  whose?  names  are  to  the  gnuid  jnrors  imkiiown."  Tin; 
proof  showed  tiiat  the  money  was  |)ai<l  by  C.  B.  for  the  jmrpose  alleged 
m  t\u\  indictment.  //(■/(/,  that  the  variance  was  not  fatal,  ami  that  th<! 
district  court  was  justified,  under  the  jirovisions  of  section  4 13  of  th<' 
Criminal  Code,  in  disregarding  it.     (iiithriev.  The  State,  78 

5.  EviDi"N(;e. —  Unili>r  tin?  allt>g'''tions  of  the  indictment,  an<l  the  circum- 

staiire:s  of  the  case  as  shown  by  the  testimony,  it  was  /((■/(/ com- 
petent for  the  state  to  prove  other  acts  of  bribery  than  those  alleged 
HI  the  indictment,  for  the  purpose  of  corroborating  the  principal  wit- 
ness upon  material  facts  involved  in  the  original  contract  of  bribery, 
and  also  for  the  purpose  of  showing  the  system,  phui  and  design  of  tlie 
parties  involved  in  tue  tran.saction  alleged  in  the  indictment.  /'/. 


',«■ 


BURGLARY. 

DwELLiNO-HOfSE  occii'iED  IN  PART  RY  SERVANT. —  WHiero  a  dwelling- 
house  was  (H'ciipied  by  one  in  charge  of  a  plantation,  and  he  ordinarily 
nlej)t  in  (me  room  of  it,  the  entire  house  was  his  dwelling-house, 
allliough  another  r(M)m  may  have  been  (K'casionally  CMrcupicMl  as  an 
ofiic<!  or  bedroom  by  another  who  while  there  was  the  master.  AhUIdii 
V.  The.  State,  «0 

BUROLARY  AT  COMMON   LAW  AND  VNDER  THE  STATUTE.— TIu>  act  of   1870 

((icorgi.'i)  did  not  alter  the  law  of  burglary  otherwi.se  than  to  put  biu'g- 
lury,  whether  <(>nunitted  in  the  day  or  night,  on  the  same  plane  in 
respect  to  punishment.  Id. 

Autrefois  convict— When  no  rar. —  As  burglary  and  larceny  com- 
mitted at  the  same  time  are  separate  and  distinct  offenses,  a  (conviction 
of  one  is  no  bar  to  a  i>roso(;ution  for  the  other.  The  State  v.  Mar- 
tin, m 

BUROLARY  AND  LARCENY  —  CRIME  CONSISTINO  OF  DEOREES. —  Under  the 

Revised  Statutes  of  Missouri,  sec.  1053,  which  provides  "  that  if  ujion 


INDEX. 


01!) 


the  trial  of  any  person  for  any  misdemeanor  it  shall  appear  that  the 
facts  Riven  in  cvidcMu^e  amount  in  law  to  a  felony,  such  person  bv  reason 
tliereol"  sliall  not  be  entitled  to  lie  acquitted  for  such  misdemeanor;  and 
no  jierson  tried  for  sucli  misdemeanor  shall  be  liable  afterward  to  be 
j»rosecuted  for  felony  on  the  sanu?  facts,  unless  the  court  shall  think  fit 
m  its  discretion  to  discrliarKc  the  Jury  from  Kivinji  any  verdict  upon  sucli 
trial,  and  to  <lirect  sucli  iierson  to  bt;  indicted  for  a  felony,  in  whicii  ciise 
such  iK'ison  may  l)e  dealt  with  in  all  respects  a«  if  he  liad  not  been  put 
uiHUi  bis  trial  for  such  misdemeanor."  held,  that  this  section  has  no 
reference  to  independent  offenses,  but  hai  api)licatioii  to  that  class 
of  <ill'enses  of  wiiicli  there  arc  (lillVrent  de};i-ees  or  grades,  and  of 
which  iL,'ra(!es  or  dejjrees  the  misdennNinor  cliarged  is  one  — that  it 
would  ajijily  to  petit  and  yi-and  larceny,  but  n(jt  to  burghuy  and 
larieny.  /rf. 

i.  Indictment,  when  not  bad  fou  diplicity.— Wliere  defendant  was 
found  Kuilty  on  an  indictment  chiiigiii};  that  he  broke  and  entered  a 
barn  in  wliich  were  certain  goods,  etc.,  with  the  felonious  intent  to 
take,  steal  and  <aiTy  away  said  goods,  etc.,  and  did  feloniously  take, 
steal  and  cany  away  certain  of  llie  goods,  etc.,  and  the  court  instructed 
the  Jury  tluit  "  the  charge  in  the  indictment  that  the  defendant  stole 
goods  is  for  the  purpo.sc  of  charging  the  public  oifense  he  intended 
to  coMiiiiit,  and  the  larceny,  if  any,  may  Im^  shown  and  considered  for 
the  puriiose  of  showing  the  intent  of  "the  (h.-feiidant  in  Itreaking  and 
entering  said  building,"  a  motion  in  arrest  of  judgment,  because  the  in- 
dictment charged  two  olfi'hsi's.  w;is  denied.     State  i'.  Shaffer,  8;{ 

1.  Possession  of  (ioods  reckntia'  stou:n  not  of  itself  sufficient  to 
WAUiiANT  conviction  OF  BUUdi.AKV.—  The  presumption  of  guilt  whicli 
arises  from  the  possession  of  goxis  recently  stolen  is  aiiplicable  to  the 
(•rime  of  larceny,  but  not  the  crime  of  burglary;  and  while  it  is  compe- 
tent evidi'iicc  tending  to  sliow  that  the  defendant  committt^d  the  burg- 
lary, it  is  iu)t,  of  itself,  snffieieiit,  even  if  inie.vjilaiiieil,  to  warrant  a 
conviction.  /<'. 

CERTIORARI. 

I,E(JAMTY  OF  Jl'DOMENT  FOR  COSTS  NOT  UEVIKWABT.E. —  If  the   Court   en'cd 

in  allowing  any  costs  that  were  ii'it  taxable  against  the  relator,  it  was 
not  an  «'.\cess  of  Jurisdiction.  twA  its  action,  in  tliis  resjiect,  cannot  be 
reviewed  upon  eertiorari.     St'de  r.  Distriet  Court,  236 

CHANGE  OF  VENUE. 

1.  CHANOF.  OF  VENUE  ON  THE  OROUND  OF  PRFJUDK'E  ON  THE  PART  OF  THE 
PEOPLE  OF  THE  COUNTY. —  A  jictition  for  a  change  of  venue  in  a  crimi- 
nal case  was  based  on  the  alleged  prejudice  in  the  minds  of  the  people 
of  the  county,  caused  by  the  ])uhlication  in  certain  newspapers  of 
prejudicial  accounts  of  the  alleged  olTense,  such  newspapers  having  a 
standing  and  large  cinulation  in  the  conntj-.  The  state's  attorney  filed 
a  denial  of  the  statements  in  the  jM'tition,  supported  by  counter  affida- 
vits, going  to  show  that  such  prejudice  did  not  exist  from  the  publica- 
tion of  the  articles,  among  whii-h  atHdavits  was  that  of  the  sheriff,  to 
the  effect  that  he  talked  about  criminal  ciuses  with  people  from  all  parts 
of  the  county,  and  bad  found  there  was  but  comjiaratively  little  in- 
terest taken  iii  tlie  case,  antl  that  from  his  knowledge  of  the  temper  of 
the  i)eople  of  the  county  he  had  no  hesitation  in  saying  that  the  de- 
fenclant  could  have  his'  case  tried  as  fairly  and  impartially  in  that 
coimty  a.s  in  anv  one  in  the  .state.  It  wa.s  held  on  error  that  the  court 
was  not  ja-eparcd  to  siiy  the  circuit  court,  in  denying  the  petition,  liad 

•       decided  contrary  to  the  right  of  the  case.     Dmm  r.  The  People,       52 

•J.  Affidavit  should  be  made  by  one  knowing  the  facts.—  An  affidavit 
for  change  of  venue  on  the  ground  of  the  bias  and  prejudice  of  the 
people  of  a  county  shouM  be  made  by  one  knowing  the  facts  which  he 
swears  to.  One  niiwU'  bv  a  non-resident,  who  shows  no  means  of 
knowledge,  is  not  sufticitnt.    Simmcniian  r.  The  State,  91 


020 


AMERICAN  CRIMINAL  REPORTS. 


3.  UxABLK  TO  OBTAIN  AFFIDAVITS.—  If  a  party  is  uiinlilo  to  olilain  .iCili'r.vit.i 
from  rtsidfiits  of  .a  county  lie  may  state  to  wlioiu  lu'  ajjplicil  for  tlii> 
Haiiic.  tlic  reasons  Kivt'ii  by  each  for  refusinjir,  and  tliat  In-  was  unalilo 
to  iirocnrc  afHdavits  in  sui)i)ort  of  his  motion  because  of  the  n'fusai  of 
tlie  I'itizens  to  f;ive  the  same.  Jd. 

CHARACTER  AND  REPUTATION. 

Pi-evious  Rood  character  may  be  shown.  See  State  of  Iowa  v.  Dono- 
van, 'iT\. 

COIMMITMENT. 

Proc'K'^s  of  co:\i:mitmf,xt  cannot  kni,akok  nF.roRO. —  All  ]irocoss  after 
.judniueiit  must  iiursffe.  butcamiot  be  used  to  vary  orcontrol,  tlie  Jiidp;- 
nieiit.  And  a  niemoranduni  u|)on  tlie  commitmejit  (•;iniint  lie  i'esnr(e(l 
to  fiir  t'le  purpose  t)f  enlarj^inj;;  what  the  court  has  solemnly  adjudged. 
lu  ir  Jdvksoii,  568 

Infamous  crime,  iis  to  record  of  conviction  for,  2,  3. 

CONCEALED  WEAPONS. 

Cakryino  nsToi.s  —  Act  of  Aprii,  1,  1H81,  constiti'tionat,. — Sections  1 
and  2  of  the  act  of  A|)ril  1.  1881  (Arkaiisa.s),  |)roliil>ilinj;  llie  carryinj; 
of  arniv  pistols,  exrejit  uiict)vered  and  in  the  haml,  is  not  unconstitu- 
tional. ■  Hull  r.  Stale,  Ol» 


Cf^NCEALTNf}  DEATH  OF  CHILD. 

CONCKAt.lXf!  DEATfl  OF  CiiiM). — The  crime  of  eiideavcriugiirivatcly  to  con- 
ci'id  t!u'  death  of  a  liaslard  cliiiil.  in  violation  of  (ieii.  St..  eh.  'J.^iti.  sec. 
8  (New  Hampshire),  may  be  conunitted,  altliougli  the  lads  .are  from 
necessity  made  known  to  some  one  who  is  re(^uested  to  iieep  them 
secret.    Stater.  Hill  (tat.,  10'2 

CONCEALINCl  STOLEN  PHOPKKTY. 

A  partj'  knowinp:  property  to  have  been  stolen  has  no  right  to  conceal  the 
same,  even  with  the  intention  to  save  iiiiii.-ictl'  frnni  lo-.s;  and  a  ''huise 
in  an  instruition,  on  the  part  of  the  defendant,  announcing  a  ditferent 
rule,  will  vitiate  the  entire  instruction.      VaiiqibL'll  v.  I'lic  J'cople,  ^38 

CONSPIRACY. 

1.  Ixdktmf.nt  and  triaf.  of  two,  both  mcst  bi',  convicted  or  acqfit- 
Ti;i). —  Where  two  persons  are  indicted  for  cons) liring  together  and 
they  are  tried  together,  both  imist  be  acipiittcd  or  both  convicted. 
Till'  (fhii'm  I'.  Maitiiiiiij,  ,'58:2 

3.   CoNSt'IRATOR-S    HKT.r)  RI'SI'ONPTBI.E  ALTHOrOTf    TlfEV    DID    NOT    INTEND   TO 

COMMIT  THE  PAHTlci'l.AKCKiME. —  When  part  ies  are  eng.ageil  in  the  com- 
mission of  a  crime  with  malicious  intent,  and  in  Uw  execution  thereof 
per|ietrate  another  criminal  act  notorigin;dly  intended,  the  rniintended 
act  derives  its  character  from  the  intended  crime,  and  the  original 
malicious  intent  alfects  both  acts.     The  State  v.  Vines  et  al.,  20(» 

CONSTITUTIONAL  LAW. 

1.  Jury  sf.rvice  confixed  to  the  county.—  There  is  no  authority  in  the 
statutes  of  Illinois  for  the  selection  of  grand  an<l  petit  jurors  in  one 
county  to  sei've  m  anotlier  county.    Buckrice  v.  The  People,  100 


INDEX. 


C21 


! 


;5. 


As  TO  i:!<urr  or  tisiai-  by  ji-ry,  and  in  ^v^AT  county  a  i-kk'^on 
CIIAKOKI)  WITH  ciUMK  Mi'ST  MR  TUIKD.— Tli(!  ri^lit  of  trial  l)v  jury. 
HiiMraiiticil  l)y  tlic  coiistitutioii  to  oiic  iU'cusi'd  of  criiiu',  iiuhi'ilcs  the 
rijilit  (il  ln'in..;-  tricl  l>y  jiirnrs  scli-ctcil  iroiii  the  fouutv  in  which  tlio 
oiFi'iise  iH  alli'<;('(l  to  liiive  liecii  coiiimitti'd.  '  Id. 

Section  '}.  (livisi.)ii  10.  of  tlic  Criminal  Code  (Illinois),  in  so  far  as  it  au- 
thori/(sa  iiartyto  he  tried  for  ;in  oU'eiisc  conunitted  entirely  witliin 
one  connly.  hut  oiu;  hundred  rods  from  the  cuuuty  line,  hi  the  ailjoin- 
in^;'  county,  is  unconstitutional  and  void.  '  Id. 

Tliere  is  a  class  of  oll'eiises  that  may  he  conunitted  by  a  I'arty  heinK  in 
one  county,  upon  a  jierson  or  tliinj;-  hein;;'  at  tlu'  sanie  time  i'li  iinother 
county,  when  tlie  olfense  may  not  inaptly  he  deliued  as  having;- heeti 
coinmitlcd  in  eiiher  county ;  and  offenses  c'onunittt'd  on  the  county  line, 
or  so  neur  tlierclo  as  that  the  distance  therefrom  is  ina|ipreciahle.  may 
with  propriety  he  re.uardeil  as  havin;^'  been  conunitted  in  eitlier  county, 
and  hy  doin;.;-  so  no  one  is  deiirived  of  any  constitutional  riylit.  Id. 

But  where  the  entire  olfense  is  eomnutted  within  one  county,  and  at  an 
a|)preciahle  diNtiuice  from  the  comity  line,  as  in  this  case,  at  a  <listance 
of  seventy  rods,  the  jiarty  aci'Usc'd  caimot  he  indicted  ami  tried  in  an- 


10 


11 


other  comitv  for  that  olfense, 


Id. 


0.  A  trial  hv  jiirv  in  a  criminal  action  cannot  he  waived  by  the  accused. 
.S7<(/c  r.' stiinn-t.  111 

T.  On  trial  of  an  indictmetit  for  an  assatdt  and  battery,  a  jury  trial  was 
waiveci.and  the  court,  by  re(|Uest.  foimd  the  Caclsand  declared  the  law 
arising-  thereon.  IlvId,  {hat  such  a  ]irocedure  is  not  wanaiiled  by  law, 
and  the  case  will  be  remanded  for  (rial.  Id. 

8.  A  statute  which  jirohibits  the  sale  and  the  keeping  for  sale  of  intoxicat- 
WiX  liquors,  and  which  contains  no  exception  in  favor  of  imjiorters 
whose  inijiorted  liipiors  remain  in  tiie  ori^^inal  iiacka>;t's,  or  of  dealers 
holdin;;' onlstamlinj;'  licenses,  althon.uli  voiil  as  to  such  importers,  and 
perhajis  void  as  to  license  holders,  is  valid  as  toothers.  If  a  law  wliii'h 
is  constitutional  under  ccitain  limitations  exceeds  those  liinitatio;is.  it 
inav  still  be  oiierative  within  tlu'ui  and  void  only  for  the  excess.  State, 
r.  Aiiuiii.  113 

II.  Where  a  person  is  imprisoned  for  refusin.<;- to  testify  or  ai>])ear  before  a 
couidv  attornev  in  a  proceedinii-  under  section  8  of  the  act  of  March  7, 
18S.')  (kansaN).  which  is  amendatory  of  the  act  i)rohibitinj;' the  iuanu- 
facture  and  sale  of  intoxicating- liijuors.  he  is  restrained  of  his  lilierty 
without  "ihw  )irocessof  law."  within  the  meaniuK  of  the  fonrteeiith 
amendment  to  the  constitution  of  the  United  States,  and  entitled  to 
be  released  on  liabcitH  corpus  issued  by  the  United  States  circuit  court, 
III  ir  Zichotil,  110 

Vr.UDICT  dK  K.I.F.VICN  PKHSOXS  IN  CAPITAL  CASE  A  NULLITY.— -Tho  Consti- 
tution K'lJiranties  a  jurv  of  twelve  men,  the  common  law  jury,  and  the 
ri^ht  to  be  tried  for'criine  by  a  jury  of  that  number  is  not  a  mere  privi- 
h'i;-e  of  the  i)risoiier.  but  a  le<;i>l  i't'<l"'''t''"t'"t!  which  cannot  he  chanj^ed 
by  the  consent  of  the  prisoner.  The  verdict  of  elevL'ii  jurymen  in  a 
capital  case  is  a  mere  mdlity,  and  any  judgment  rendered  thereon 
a-ainst  the  prisoner  is  without  jiu-isdictiou  and  void.     Terntiii!/  i:  Ah 

574 


prisoner  is  witnoui  ji 
Wall  and  Ah  Yen, 

STATI:    STATUTE    HF.LD  NOT  IN  VIOLATION  OF  TIIE   CONSTITUTION  OF  THE 

UNlTt:»  StatI'.s.— The  statute  of  Missouri  ])roviding  for  the  punishment 
bv  line  an<l  imiirisonment  of  any  jn'i-son  who  shall  maimfactiire  "out 
of  anv  olea^iinous  substance  or  aiiv  coin))ouiidsof  the  same,  other  than 
that  produced  from  unadulterated  milk,  or  cream  from  the  same,  any 
article  desi-ned  to  take  the  place  of  butter  or  cheese  prodmrd  trom 
imre.  unadulterated  milk,  or  cream  of  the  same,"  or  who  shall  sell  or 
olfer  for  sale  the  same  as  an  article  of  food,  i,  not  in  violation  ot  any 
in-ovision  of  tlie  constitution  of  the  United  States.  In  re  Brosnahan, 
Jr.,  1« 


AMERICAN  CRIMINAL  REPORTS. 


18.  Patentee  not  rROTEfTED  adainst  violation  of  state  laws. — The 
sole  objoct  anil  purixwo  of  tlie  patent  laws  is  to  give  to  tlio  iiivt'ntur  u 
monopoly  ot°  wiiat  lu' lias  disoovmHl.  What  is  Ki'aiit('(l  to  him  is  tlu' 
exclusivo  rif;;lit,  not  tlu'  al)stra<t  riKl't;  l>"t  tlio  ri^'lit  in  liiiii  to  th<> 
oxchision  of  I'verybotly  I'lsc.  Ho  is  not  aiithori/.oti  by  llu!  jiatcnt  laws 
to  mannfactinL'  anil  sell  the  patented  aitieie  in  violation  of  tlie  laws  of 
the  state.  His  enjoyment  of  the  iif;ht  may  bo  inixliliod  by  the  exi>;en- 
eies  of  the  eoiiumuiity  to  whieh  he  beloiiKf^,  and  re^nlated  by  laws 
whieh  render  it  snbservient  to  the  j;eneral  welfare,  if  held  subject  to 
state  control.  lil. 

13.  Patent  — In  what  sense  a  contract.— A  patent  is  a  eontract  only  as 
betwei'n  the  parties  to  it.  namely,  the  United  States  on  one  side  and  the 
patentee  on  the  <ither,  and  the  rifj;hts  eonferri-d  thereby  can  I'xteiul 
no  further  than  tlie  rif^ht  granted  to  the  patentee  under  tho  patent 


tf). 


10. 


17. 


IH. 


19. 


20, 


laws. 


Id. 


14.    DEI'iaVATION   OK  MIIEKTV  OR    i'llOPERTV  —  FOURTEENTH   AMENDMENT  TO 

THE  (.ONSTITITION. —  The  statute  above  named  dot-s  not  dt!privo  any 
person  of  lilierty  or  property  without  due  process  of  law,  within  tho 
meanint!;  of  the  fourteenth  amendment  to  the  constitution.  Id. 


Title  of  acts. —  A  statute  is  not  unconstitutional  as  a  whole,  inider 
the  constitution  of  1H(;8  (Louisiana).  I)ccanse  all  its  objects  are  not  ex- 
ju'essed  in  its  title.  Those  jiarts  of  the  hiw  which  are  indicated  by  the 
title  nnist  st;uid,  while  only  those  not  so  indicated  will  fall,  unless 
thoy  are  so  interwoven  with,  and  dependent  upon,  t'ach  other  that  they 
cannot  be  separated.     Stale  r.  Kniicio.'^,  l(i(i 

I'r.F.SKNC'K  (IF  DEFENDANT  IN  A  CAI'ITAI,  lASF.—  When  the  defendant  (h'- 
clined  an  invitation  to  be  present  at  a  view  taken  by  the  jury  in  a  capital 
ea.se  the  judf^ment  should  not  bo  reversed  on  that  K'"ii"il-  Stale  r. 
BuzzcU,  410 

Trieiw  —  PuKSENCE  OF  A<(  FSED  itKFoRE.- Under  a  statute  which  pro- 
vides that,  "  if  the  indictment  is  for  felonj',  the  defendmit  must  be  per- 
sonally ](resent  at  the  trial,"  the  prcsi'uce  of  the  defendant  cannot  be 
disjiensed  with  before  triers  appointed  by  the  court  for  tlie  trial  of  tlu^ 
suliiciency  of  a  cause  of  challen<;e  to  a  juror.     Ilaiit  e.  Utah,  417 

Witnesses  — STATiTE  which  removes  common  law  disaisimtv  of,  not 
K.K  I'OST  FA(TO. —  Statutory  alterations  which  do  not  increase  the  pun- 
isiuneiit,  nor  change  tlu'  inn'redients  of  the  olfense  or  tlie  ultimate  facts 
necessary  to  establish  Kidlt,  and  which  only  remove  existint;-  restrictions 
upon  the  competency  of  certain  cla.-si's  of  persons  as  witnesses,  relate 
to  modes  of  procedure  only,  in  which  no  one  can  be  said  to  have  a  vested 
ri.u^ht,  and  whieh  tiie  slate,  upon  grounds  of  jmblic  policy,  may  reyidati^ 
at  jiloasure.  Id. 

The  lof^islature  cannot  deprive  a  jiarty  of  his  ri;^ht  to  a  trial  by  jury,  in  a 
criminal  charge,  before  a  just  ice  of  the  pi-ace.  Suih  trial  nnist  be  given 
cither  there  or  on  appeal,  the  constitution  guarantying  u  trial  by  jury 
ill  all  jiro.ivcut ions.     I  n  re  liolj'n,  440 


A<T   ESTAULISIHNO  COURT  CANNOT   IJE  ATTACKED   BY   SPEC:IAI<  PLEA. —  A 

prisoner,  undcsr  indictnient  for  murder,  c'annot,  by  a  special  [ilea  to  the 
jurisdiction  of  the  court,  imiieaeh  the  constitutionality  of  uu  a<'t  of 
assend)ly  wliich  dtisignated  the  county  in  which  .said  court  was  held  as 
a  separate  judicial  district,  uiion  the  allegation  that  said  county  con- 
tained less  than  the  number  of  inhabitants  reipiired  under  article  V, 
section  ."».  of  the  constitution,  to  entitle  it  to  be  con.stiluted  a  separate 
judicial  district.    Coyk'  v.  Com. ,  870 

21.  License  —  P'^ddlers. —  An  act  which  discriminates  against  the  proclucts 
and  mamifactures  of  other  states,  by  requiring  jieddlers  to  obtain  a  li- 
cense to  sell  the  same,  is  uncuuutitutiuuul  and  void,    titate  v.  McOinuis, 

349 

See  Evidence,  3.  ' 


INDEX. 


(!2l 


CONSTntJCTION  OF  STATTTTES. 

1.  Construction  of  •  i:.\Ai.  codk  with  uefkuencr  to  persistent  nuMi- 

NAIA—Tlic  provision  of  the  PoiiaK-'odo  (New  York),  imrojiHiiiKthi'imn- 
iHliiiK'iit  wlicri-  tilt'  oiloiiHC!  fliar}j;iMl  isasocoiid  oircnsc,  applios  to  c-aaoa 
wlicri'  tlio  lirst  olFi'iisi^  was  (•oimiiittcd  iK'fon'saiilfoih^  wont  intoolFwt. 
The  first  oifonsc  is  simply  a  fact  in  tiic  past  liistory  <>f  tliu  criminal  tO 
l)c>  taken  into  consideration  in  prescriltin;;  punislin'ment  tlicrefor.  The 
|)r<)visi()n,  tlierelure.  is  not  limited  in  its  application  hy  the  provision  of 
said  code  declariiif;  that  none  of  its  jn-ovisioiis  ai>ply  to  an  oft'er.se  com- 
mitted or  act  done  l)el"ore  it  went  into  effect.     Tltc  People  v.  llaijtnvnl, 

124 

2.  Same. —  Nor  is  the  ju-ovision  first  mentioned  limited  to  oases  wliore  tho 

second  conviction  is  for  an  offense  <»t'  the  same  character  and  v;rado  as 
that  which  resiiUi'd  in  the  first.  Where,  therefore,  defendant  was  con- 
victed of  tlu^  crime  of  for;;('ry  in  the  first  de<;ree,  charged  as  a  second 
offtnise,  and  it  appi  ared  that  he  had  heen  jirevionsly  convicted  of  f'or,>;ery 
in  the  tliird  de,i;rei',  held,  tliat  as  tiie  "  snhse(|uent  crime  was  one  which, 
upon  the  first  conviction.  nii;;lit  he  jiunisiieil,  in  tlie  discretion  of  tho 
court,  hy  imprisonment  for  life,"  it  lieinj;  the  second  conviction,  such 
punishment  was  im])erative  under  the  law.  Ji{. 

W.  liErEAL  OF  — I'ii'FECT  OF  AMicxDMENT.—  TIio  repeal  of  a  criminal  law 
hy  an  anienilalory  act  whicli  chan};-es  the  repealeil  act  only  hy  reduc- 
ing:; the  punishment,  when  the  repeal  and  re-enactment  were  intended  to 
contiime  in  force  the  uninterrupted  operation  of  tlie  old  statute,  will 
apply  to  crimes  committed  hefore  the  new  act  took  effect;  and  theof- 
feiuler  may  he  punished  under  the  law  as  amended.     Hair  v.  State, 

127 

■t.  (Jriminal  statutes  nuist  he  strictly  construed,  and  no  case  is  brought  hy 
construction  within  a  statute  unless  it  is  completely  within  its  wctrds. 
State,  I'.  (Iralidiii,  270 

r>.  Repeal  hy  implication  of  a  prior  statute  bj-  a  later  one.    Sifred  v.  Com., 

See  (JRUEi.TY  TO  Animals.    Ejiuezzlement,  7.     Civil  Puaotice  Act  — 
Pkactice,  20. 

CONTEilPT, 


1.  Notary  pukmo  —  Povv'er  to  commit  for  contempt. —  The  statutes  coi;- 

fer  authority  on  notaries  pul)lic  to  con\mit  to  prison  any  witness  who 
refuses,  when  dulv  sununoned,  to  give  liis  tk>i)osition.  U.  S.  (Mis- 
souri) 187i),  i-;^  2l:!;5;  215(),  4027.     E.v  parte  PricNt.  V.U 

2.  .    A  ])arty  to  a  suit  is  under  the  same  ohlif^ation  to  give  hisdeposition 

as  any  otlu^r  person.  Id. 

;j.  .  That  a  witness  resides  within  the  jurisdiction  of  the  court  in  which 

the  suit  is  jieiKling.  is  in  good  health,  and  contemplates  no  prolonged 
absence,  hut  expects  to  be  present  at  tlie  trial,  is  not  made  by  tho  stat- 
ute an  exi-eption  to  the  right  of  a  jiarty  to  the  suit  to  have  his  dei)osi- 
tion  taken. 

CONTINUANCE, , 


Id. 


Absence  of  wiTNESsr.s. — One  ground  for  a  continuance  in  a  criminal 
case  was  tin;  al)sence  of  witnesses:  l)ut  it  did  not  appear  from  the  affi- 
davit but  that  tiu!  same  facts  might  be  [n-oved  by  other  witnesses. 
Held,  that  this  ground  was  not  sufficient.    Dunn  v.  The  People,        .W 

Same  — Want  of  time  for  attokney  to  prepare  the  defense.— An 
offense  wa.s  alleged  to  have  heen  connnitted  on  March  31,  and  tlie  de- 
fendant wiis  arrested  on  the  same  day,  so  that  both  lie  and  his  counsel 
were  then  informed  of  the  natuie  and  character  of  the  offense  with 


624 


AMKRICAN  CIU.MINAL  KKl'OUT.S. 


i 


i 


i 


■■ 


Mliicli  till'  <l('tViiil;iiit  w«s  fliarf^fd,  iiiid  llic  iiKlictinciit  was  iii)t  found 
initill'orty-scvcii  diiys  tlicrcal'tcr,  iiiid  tlic  triiil  wii^i  had  twenty  ilays 
later.  It  was  apparent  from  llie  nature  and  cliaraeter  <>(  tlie  ease,  as 
hliiwn  Ity  the  recDi-d.  that  the  del'endant  lia  1  anijili'  time  tn  |i|('|)aie  t'nr 
trial.  It  WAS  liclil  m>  ern>r  to  refuse  a  <'<)nlhni;iiice  on  the  ;j,ronnd  that 
(lelViidaiit's  counsel  had  heen  so  oeeiipied  with  otiicr  cases  in  tlie  circuit 
nufl  appellate  coiu'ts  that  he  had  not  sullicieut  time  and  opportunity  to 
jirepare  the  case  lor  trial.  J<l. 

;i.    AllSI'.XCK  Ol-  WITNKSSKS  —  :\I .VTKItlAl.lTY  Ol'' Till'.   ri!()I'OSi:i)  'riXriMONV.— 

Preliminary  to  tlie  trial  of  two  derendants  on  a  charj;i'  ol'  murder, 
alle;;ed  to  have  heen  committed  on  the  ni;:;ht  of  the  lOtli  of  tinly,  liy  com- 
peliiii:;  the  deceased  to  jump  from  a  raiii'oad  car  while  in  I'apid  nm- 
tiiai.  the  court  refusecl  a  ciaitimiance  on  liehalf  of  the  aceiiseil,  asked 
on  till'  ;;ronnil  of  thi'  ahseiice  of  two  witnesses  residin-^  in  Iniiiaiia,  hy 
\\hoiii  tlie  defendimts  e.\pected  to  prove  that  sui-ll  witnesses  saw  the 
del'eiidants  at  the  town  of  (iodfrey,  in  Madison  county,  Illinois,  on 
the  cveiiinj:;  of  .Inly  !t.  a  place  (list  ;m  it  senile  t  uenty-livi-  or  thirty  miles 
from  where  the  oli'eiisc  was  char,i;(Ml  to  lia\e  heen  i-ommilted.  11(1(1. 
no  eri'or,  as  the  allidavit  failed  to  show  any  inconipal ihilily  lietwcen 
the  fact  alle;.;('d.  as  expei'ted  to  he  proved,  , and  till' conunissii in  of  the 
oli'eiise  hy  till'  defend'ints.  'J'lie  alisent  testimony  was  immat"rial. 
AtldiiiHct  (il.  r.  Th(J'((>i)l(\  '  Jiol 

4.  The  jiraiitiii"::  of  a  <'oMtiiiuance  is  within  the  le;;;!!  discri'tiou  of  the  court 
<i  <iii().  with  which  the  supreme  I'ourt  will  not  interfere  without  mani- 
I'esi  cause.     The  Sttitc  c,  FulJ'urtl,  \'-\ 


COUONER, 

See  lNvri:sT. 

r()RP01?.\TK)NS. 

Tlie   iirojier  mode  of  l)rin;;in;i;  into  court  a  corporati<')n  charp;ed  \vith   a 

criminal  offense  is  hy  service  of  a  copy  of  the  Mimmons  upon  one  of  its 

odiccrs  or  a;;ents.     The  acts  of  assemhly   in  reference  to  ser\  ice   of 

jirocess  ill  civil  and  criminal  cases  reviewed.    Stale  r.  linilvadd  ( 'o.,  i:!T 

Foreiyu  iucorponitiou  uiay  be  shown  by  indirect  evidence,  see  EviDlCNci'.,  oi. 

CORPUS  DELICTI, 

1,  Circumstnntial  evidence  is  com|ietent  to  establisli  the  fact  that  thi>  per- 

son ch  a  rj;t'd  to  have  liei'ii  murdered  is  dead.  Tlu^  ](roduclion  of  the 
body  is  certainly  the  best  evidence  of  that  fact;  but  this  is  not  always 
possible,     JuhiisDii  v.  Co///,,  I  in 

2.  The  conclusiveness  of  circumstantial   evidence  to  establish  the  fact   of 

death  is  for  the  .jury,  and  not  the  court,  to  determine.  Thi'  court  is 
only  concerned  in  secinuc  that  iniproiier  evidence  docs  not  ,';o  to  the  Jury, 
ami  that  they  are  properly  inslriicti'd  in  such  cast's.  ///. 

;].  In  iirosecutions  for  homicide  tlie  ('(irjiiis  (tclicti  nuist  be  shown  tirst,  so 
far  as  the  testimony  can  be  separately  .!;ivcn,  and  especially  so  far  as 
c!in  be  shown  from  iK)iit-iiiini('iii  examinations.     The  J'coplv  v.  Hall,  Wu 

4.  As  to  ideiitilication  of  body  of  the  person  alleged  to  have  been  murdered. 
7/oy//  c.  Utitli,  4i: 

See  Receivino  Stolen  (ioous,  \. 


CORRUPTION  IN  OFFICE, 

1,  Plkadino. —  An  indictment  under  a  statute  must  state  n\\  the  rirctim- 
stances  whicli  constituto  the  oileuse  aa  defined  in  the  statute.  Ikijid  r. 
The  Com,,  14;] 


INDEX. 


025 


2.  Same.— Tlimifch  the  ofTonsc,  at  common  law  or  by  statute,  is  defined  in 

KiMicral  term.s,  yet  the  indictment  must  t!lnirj,'o  it  suetilicully,  and  de- 
Mcend  tt)  particulars.  /d. 

3.  Same  —  Officials.—  In  an  indietmont  for  corrupt  misbehavior  in  ofHce, 

thu  act  must  be  distinctly  charged  jus  done  knowiuL'ly  and  witlicorruiit 
motives.  jfji^ 

COUNSEL. 

QUESTlOXIJfa  COJIPETENCY  OP  f'OUXSKL   ASSIGNED  TO  DEFEND  AN  ACCUSED 

PERSON.—  When  the  court  below  assigns  counst'l  for  tlie  ilciense  of  an 
accusetl  person,  it  will  be  presumed  that  he  was  fully  comjjetent  to 
discliarKe  the  <lnty  jusslKiied  him.  His  competencv  cannot  be  made 
an  issue  on  a  motion  for  a  new  trial.    Murphy  v.  the  People,         323 

See  Practice,  13,  13,  14.    Ui},'ht  of,  to  consult  witness,  see  Witness,  1. 
Want  of  time  to  prei)are  for  defense,  see  Continuance,  2. 

CRUELTY  TO  ANIMALS. 

1.  Construction  of  statute.— The  term  "  needlessly,"  in  the  act  "  for  the 

j)revciition  of  cruelty  to  animals,"  moans  an  act  done  without  any 
useful  motive,  in  a  si)irit  of  wanton  cruelty,  or  for  the  mere  pleasure 
of  destruction.    Griae  v.  The  State,  146 

2.  Same  — Burden  op  proof.- Tlie  burden  of  proof  waaupon  the  state  to 

show  not  only  the  kllUnjj;,  Init  tliat  it  was  done  under  such  circumstances 
JUS,  unexplained,  would  autliorize  the  jury  to  believe  that  it  was  needless 
in  the  sense  of  the  statute.  Id. 

8.  Same  —  Useful  ob.iect  in  kii.lino.—  However  unlawful  the  act  may  be, 
and  whatever  penalties  mi.t;ht  be  incurred  under  other  sections  of  the 
statute,  the  defemlant  should  not  be  convicteil  under  an  indictment  upon 
the  particular  section  of  tlie  statute,  if  he  had  some  useful  object  in  the 
killing,  such  a.s  the  protection  of  his  wheat  and  corn.  Id. 

DISORDERLY  HOUSE. 

1.  Immaterial  averment.—  It  is  necessary  to  prove  matter  of  description 

only  where  the  averment,  of  which  the  descriptive  matter  forms  a 
part,  is  material.    Stale  v.  Dame,  444 

2.  Same— Character  of  those  who  frequent  it.— The  indictment  being 

for  keei)iiig  a  disorderly  house,  an  averment  therein  that  "  in  the 
said  house  certain  evil-disposed  persons,  a.s  well  men  tus  women  of  evil 
name,  fame  and  conversation,  to  come  together,"  etc.,  is  immaterial  — 
might  be  rejected  as  surplusage,  and  it  was,  therefore,  unnecessary  to 
prove  it.  Id. 

DYING  DECLARATIONS. 


11;] 


1.  Dying  declarations  are  admissible  only  in  cases  of  homicide,  when  the 
death  of  tlie  deceased  is  the  subject  of  the  charge,  and  the  circumstances 
of  the  death  the  subject  of  the  decilarations.    Reiinoldsv.  The  State,  153 

8.  They  are  ina<lmissible  when  they  relate  to  facts  unconnected  with  the 
declarant's  death.  Id, 

3.  If  they  were  made  under  a  sense  of  iini)ending  dissolution,  it  matters  not 

that  death  did  not  ensue  for  a  considerable  time  thereafter.  Id. 

4.  There  is  no  rule  which  would  exchide  them  because  the  circumstances 

producing  anil  attending  the  death  can  be  shown  by  other  evidence. 

Id. 
Vol.  IV  — 40 


C2G 


AMERICAN  CRIMNAL  REPORTS. 


G.  Otiisti  EViD^rias  07  s.vmi:  fact.?. —  D/in-;  cle^lar  ition^  nra  a-luiiasible  in 
eviile:i(!0.  altlioii  ^ii  tin*  fa  !ts  wIiLcli  tlicy  t?n  I  to  ULitabllsh  may  bj  provo  I 
by  otliur  tujtiiiu.iy.    i'ujae  v.  Tke  State,  15 j 

0.  0?I^JION  o:i  iM7.'3:tJ:\jj:.— Tiia  ilaolavxit's  iniorfiTi  that  tin  .T,;:!m-j;l  sli)t 
him  witlDLit  ci'.iijis  not  a'l  itif(>i',;a.',3  or  o^);iiiaa,  bu!;  hL>  atatjai  vit 
of  a  fajt,  aai  u  u.Luisjiblo  in  evid jacj.  Id. 

ELECTION. 

Fedt:rat,  et.^.ttion  —  Co^rMTSiioM  07  cm^i::  —  Umittid  Rtate';  oi^ric:::*., 
ETC. — Potitioncr.-i  w^nv  in  lictaJ  by  thu  grand  jury  of  thpcriaiiaalcouit 


duty  to  lveL'[) 
disturbiacoo 
Rhal  of  the  Uaitc 


1>  .  .... 

arr,'  hit  siiJ  olu..'ti  )n  b.'t.w.Ki  oajS.n,t'i,adc\)aty-.n  ir- 
l  Ktat(.'-i.  an  I  a  largo  niun!)L'r  of  otliur  i),'!'.io.is  inrit:'  I 


tliercto  liyspcrial  roastabhvi  of  Cm'.i  county;  that  in  or^Icr  tixjuiill  said 
disturbance  iK'titiosiLTs  t)olv  said  S  nitli  int)  crust  :).ly  and  w^>re  proce- 1- 
ing  with  him  to  tho  olU  'e  of  the  Unite  1  StatiM  commissioner  to  miik  > 
complaint  ajjainst  him  for  disturbing  the  pt'acc,  wlienassaulte  I  and  lired 
upon  by  a  large  number  of  armad  m;>;\,  ain)ng  whom  was  tli'i  decea'.ed, 
who  tlireatene  1  petitioner.s  and  saiil  Kaiitli  unless  ])etitioners  tunic.  1 
over  said  S.uith  to  the  state  authorities;  that,  rcfu.-iing  to  tromply  with 
thisdeinan  1,  tliey  were  lu-(>  I  upon,  and  som  •  one  of  the  atta'-kiiig])arty 
killed  deceased.  Tiie  petitioners  ]n'ay(>  1  that  a  writ  of  lidbcns  C)rj>ii:) 
cniu  c'tnii.i  issue,  directed  t  >  the  criminal  court  of  (',)ok  county,  re  piir- 
ing  tiial;  court  t:»  stay  all  further  proi',-;' line's  against  petitioning,  an  1 
that  the  suit  be  rem  )ve  1  under  the  [irovisions  of  scL-tion  (H;5  of  the 
R  'vise  1  S:  itutiM  of  the  Unit.'  I  St.ite.i.  //■/ 1.  that  the  m  n-e  lioidiu  ;  of 
a  commisiion  as  deputy-mir.^hals  of  the  United  State.-!,  Uiider  t!ie  cir- 
cumstance.s  set  forth  in  the  ])etition,  ilid  not  with  Iraw  th'.>  (rase  from  the 
jurisdiction  of  th;'  state  courts;  that  there  is  no  fe  leral  statute  malcing 
a  (li.sturbauce  at  the  polls  an  oifense  against  t!ie  Uiiite  I  Siate.s,  and  as 
Smith  wa.^  violating  a  state  law,  |ielitioners  had  a  right  to  arrest  him 
and  tur.i  him  over  t)  the  state  anthoritit's;  tint  the  fa,.'t  tliat  h  '  w.is  a 
deputy-marshal  of  the  United  Wtate.s  entitled  him  t.»  no  morectnsi 'o 'a- 
tionor  protection  tlian  otlua's  engageil  in  the  same  disturbance.  Hi'ld, 
also,  that  the  ctuse  diir.-ro.l  from  o!i,'  In  which  de;)uty-nlarsllal^^  of  the 
Unite  1  State.-!,  in  repelling  tVn-ce  by  force  in  defen.se  of  them- 
th^'lr  prisoner.5,  sh;jt  aiid  kille  1  an  as.sailant.     Stat^'.  v.  Flflchcr, 


i.-olves  or 
157 


e:\ibezzle.mcnt. 

1.  E^TorPiCL  nOF.r-?  not  a  pity  to  cuiMTNAr,  {"Asix— The  dcr(nlant,  who 

hi  I  be.'n  a  i-onnty  trea-auvr  from  IS!  I  t.)  ISiS,  w.u  in  lii't.' I  t'nr  c  n- 
bezzlemeiit,  and  the  state  introduce. 1  in  evidenci'  the  seltlcment  sheet 
wliicli  wa.s  ma  le  at  the  commeiicenii'iit  of  the  defen  hint's  hist  term  of 
olTice,  with  his  certilicate  thereon  that  it  wa.s  a  true  statement  of  cash 
then  in  his  h  1 1  Is  a^  treasurer.  VViiereiri m  defc  1  laat  si>a.;!it  t  i  s'i;)w 
that  the  shortage  complained  of  in  the  indictment  o<'(ana'e  I  duviiig  his 
prior  t'-rms  of  oHice,  and  more  than  three  years  Ud'ore  the  indict. lunt 
wa.s  fouiiil,  and  th;  '.  therefore,  the  pro.setaitinn  was  barred  by  the  stat- 
ute of  lim!titioa-i.  which  tstiin  >ay  t!i.'  c;)nvt  refin  •  1.  IF!l\  th.it  t'...^ 
..  defendant  should  have  been  allowed  to  show,  if  le  could,  that  ii<>  defal- 
cation took  pla<'e  within  three  years  next  before  the  linding  of  the  in- 
dictment.    State  r.  lliitvliiiisitii,  KiJ 

2.  Same. —  A  dt^feiidant  in  a  criminal  case  may  prov<»  the  actual   facts  in 

dispute,  notwithstanding  any  admissions  or  confessions  lu may  have 
made  to  the  contrary.  (Conclusive  presumptions  and  estopjiels  have  no 
place  in  the  cruuiiial  law  ostublisliing  tlie  ho.ly  of  the  crime  charged. 

Id. 


INDEX. 


C27 


fads  ill 
lay  liavc 
I  liav.'  iii> 

Id. 


8.  EMUK^ZLEMnNT  OP  ANY  0FFIC7.U  OR  "  OTIIKR  PKRSON."— Act  No.  43  of 
1871  (Louisiana),  providinj;  for  tlic  i)uniKlinient  of  "  any  offu-er  or  other 
person,  cliarsvd  with  tlu'c-olU'ction,  roccii  t,safc!-koL'i)in;^,  otf.,  jf  iiubliB 
money,  who  shall  convert  it  to  his  own  use,"  et<\,  <;learly  covers  the 
case  o\'  a  dork  of  the  ailministr.itor  of  finance  of  the  city  of  Now  Or- 
leans, guilty  of  such  an  at.-t.    State  v.  Exniclos,  1G8 

4.  One  employed  to  sweep  out  store,  etc.— Wlion  goods  come  into  the 

possession  of  a  servant,  out  of  the  ordin.iry  course  of  his  employment, 
but  in  ])ur.suanco  of  sjjecial  flirections  from  the  mii.stor  to  receive  them, 
and  the  servant  embezzles  the  same,  \w  is  indictable  under  the  statute. 
Til  c  re  fore,  where  on»*  employed  by  a  merchant  to  swec^)  out  iiml  wail 
about  the  store,  but  not  a.s  clerk,  was  authorized  by  the  merchant  to 
tak(!  a,  lot  of  shoes  and  sell  them  during  his  visit  to  .a  neighboring  to\vn, 
wliich  he  did.  iuid  convertOLl  the  money  to  his  own  use,  held,  tiiiitho 
wa.s  a  servant  within  the  meaning  of  tiie  embezzlement  act,  and  re- 
ceived tlie  gtKKls  by  virtue  of  his  emjyloyment.     Stutii  v,  Contiu,       1C9 

5.  V.'ii.vT  IS  POss:',:i:^ioN  of  oood;;  p.y  an   employee,  belonoinq  to  em- 

PLOYICR. —  A  bank  clerk  iiaving  accets  to  the  funds  and  becurities  of 
the  bank  in  its  vaults,  and  trusted  with  their  keeping  for  various  puiv 
looses,  may  be  said  to  have  their  poi-set^sioii  by  vhtue  of  his  employ- 
ment, within  the  meaning  of  sottion  T5  of  the  Cnmimd  Code  of  lUiuoiFi. 
Ker  V.  The  People,  211 

G.  Ejiijezzlement  —  Larceny  at  common  law. —  The  fact  that  the  felo- 
nious talcing  of  monej's  and  securitii's  out  of  a  bank  vault  by  a  bank 
clerk,  and  converting  them  to  his  own  use,  may  bo  liUceny  at  coiit- 
mt)n  law,  makes  it  no  kio  embezzlement  under  the  statute.  It  is 
entirely  com]jetent  for  the  legislature  to  declare  what  acts  shall  con- 
stitute the  crime  of  embezzlement,  and  fix  tho  punishment.  Id. 

7.  Statute  defining  emp.ezzlejient.  construed. — The  word  "ctu-e,"  aa 

used  in  sedion  75  of  tiie  Criminal  Code,  relating  to  embezzlement,  is 
the  e(iuivaleiit  of  "custody,"  and  may  mean  "charge,"  "safe-keep- 
ing," "jireservation,"  or  "security."  Tito  word  "possession,"  as  u^:cil 
in  the  same  section,  has,  ])erh;ii;s,  a  dilferent  trnd  brotulev  meaning 
than  the  word  "care;"  but  it  may  also  mean  "to  keep,"  "to  take  or 
seize  bold,"  "to  bold  or  occui>y."  s  ilie  owner  of  ])ro|ierty  would  or 
nnglit  do.  And  it  maiters  U{tle  wlidlier  one  or  both  words  ai'e  used 
in  an  indictmei:t.  1(1. 

8.  Variance  as  to  ownership  of  se(  i. hities  EMBT.zzLi:b. — An  indict- 

meiil  i<  r  eiiiliezzlemcnt  ami  larcc'iy  charged  tl'o  moiiej',  funds  and 
securities  embezzled  and  stolen,  as  the  goods  and  personal  property  of 
A,  H  and  C.  partners  under  tiie  name  of  A,  B  &  Co.  The  proof  showed 
that  lid'ore  tlie  alleged  offense  the  firm  w;i.s  composed  of  A,  B.  C  and 
D.  <U)in;v  business  under  tiie  MUiie  name,  the  latter  beuig  a  speciid 
jartner,  and  tliat  the  articles  of  partnership  were  a  matter  of  record; 
but  that  bd'ore  the  alleged  effeiise.  D  retired  fr< mi  the  firm,  although 
tlie  dihyolulion  of  the  livm  of  the  f"ur  was  ii(;t  made  a  matter  of  roo- 
ord,  iind  nitice  given,  as  reciuired  by  iaw.  Held,  tliat  there  was  no 
varifuici',  as.  alter  D  retired,  the  iiroperty  iu  fact  belonged  only  to  A, 
B  and  C.  ^<*. 

0.  EviDi-.NCE  OF  various  act^;.— The  statute  (s-edion  83  of  the  Crim- 
inal Code)  makes  it  siillitient  for  an  in<li(lment  for  embezzlement 
to  allege,  generailv,  an  emliezzlenienl,  lrau<hdent  conversion,  or  tak- 
ing, with  intent  to  convert  to  the  di'fendant's  own  ute,  tiio  moiwy, 
funds  or  securities  of  the  employer  to  a  e(>rtain  amount  or  vauui, 
without  siiecifviiig  .my  I'.artieulaVs  of  siidi  emliezzlenn>nt,  and  on 
the  trial  evidence  n.av  lie  given  of  any  riieh  enibezzlemei.t,  frauil- 
ulent  conversion  or  taking  with  such  intent;  aiul  it  is  made  mdfl- 
cient  to  niaiiitain  the  iMiiidnunt.  that  iuiy  bullion,  money,  not«, 
bank-note,  cluvk,  draft.  I'ill  of  ex.liMii  .•,.•  ov  other  i!  ■unity  for  menty 
of  the  eni|)lov('r.  of  whiitever  value  or  aiiioui.t,  was  I raudulently  con- 
verted or  taken  with  siidi  intent  by  thederU  or  employee.     In  suoh 


628 


AMERICAN  CRDIINAL  REPORTS. 


case  it  is  proper  to  allow  proof  of  any  and  all  acts  of  embezzloniont  to 
go  to  the  jixry.  if' 

10.  An  indictment  for  embezzlement  substantially  in  the  language  Ci  the 

statute  is  sufficient.  Jd, 

11.  When  coukt  will  not  compel  an  election  as  to  a  single  act.— On 

an  indictment  for  embezzlement  and  larceny  of  moneys,  funds  ami 
securities,  there  is  no  error  in  the  court  refusing  to  compel  the  j)ri)secu- 
tion  to  elect  upon  what  alleged  act  of  embezzlement  or  larceny  a  con- 
viction will  be  asked,  as  embezzlement  may,  and  most  often  does, 
consist  of  many  acts  done  in  a  series  of  years  by  virtue  of  the  confi- 
deutiid  relations  existing  between  the  employer  and  employee.         Id. 

ERROR, 

1.  Error  will  not  always  reverse — Exclusion  of  evidence. — Although 

the  court,  on  the  trial  of  a  cause,  maj'  err  iu  the  exclusion  of  evidence, 
or  in  refusing  to  allow  certain  (luestions  to  be  i)ut  on  cross-examination, 
yet  if  the  supreme  court  is  fully  satisfied,  under  the  facts  of  the  ca.se, 
that  the  error  coul.l  not  liave  affected  the  result,  the  error  will  afford  no 
gi'ound  of  reversal.    Ritziuan  v.  The  People,  403 

2.  Same  —  Instructions. —  A  .ju<lgment  will  not  lie  reversed  because  of  the 

I'efusal  of  the  court  to  repeat  a  ruling  once  distinctly  made  diu'ing  tlie 
progress  of  the  trial.    IStatc  v,  Duzzcll,  410 


The  doctrine  of 
Hutchinson, 


ESTOPPEL. 

estoppel  does  not  apply  to  criminal  cases. 


EVIDENCE. 


State  V. 
162 


1.  Sale  of  cattle  under  quarantine—  Belief  that  quarantine  had  heen 
REM()Vl:d  may  be  shown. —  On  an  indictment  for  selling  cattle,  knowing 
them  to  be  under  (luarantine.  evi<l('!ice  was  given  on  the  trial  of  f.-tcls 
tending  to  create  a  belief  in  the  mind  of  ilefendant  that  the(|uar!intint> 
bad  been  removed  when  tlie  .sale  was  made.  It  wiis  held  error  i.'  the 
court  to  refuse,  on  reiiuest.  to  cliarge  for  an  iic<|uittal  if  the  Jury  found 
that  the  defeiKlaut  did  so  be" 


State, 


■iiove  and  acted  upon  that  belief. 


i/C.'.S  /". 

178 


2.  Cona'ICT  cannot  be  sworn  in  a  cause. —  The  district  court  having  mI- 
mittecl  tlie  testimony  of  ;i  convii'teil  felon,  notwithstanding  tliedefcml- 
ant's  objection,  the  verdict  nf  the  jury  nnist  be  set  aside  and  a  new  trial 
gi'aiitcd,  altliongli  tlie  oliirrtioiinbli'  wilni'ss  teslilii'<l  he  knew  nothing 
about  the  ca.se.     State  of  Lutdfiidiia  r.  Mullen,  ISl 

8.  CoMi'KLLiNU  prisoner  TO  IWAKE  PRoFKKT  OF  HIMSELF.— In  a  criminal 
case,  the  place  at  wliicli  tlie  prisiPiier's  leg  was  ani)iutaled  being  a  ma- 
terial tioiiit,  it  was  error  for  the  cMint  to  re(|nire  liiiii  to  make  profert  of 
liimself,  so  that  a  w  itiiess  cuilil  see  li  inland  deserilie  his  condition  to  the 
jury.  A  defenilaiit  in  ii  eriiiiinal  I'ase  cannot  be  n><juii'ed  to  give  evi- 
dence against  liimself,  either  by  acts  or  words.    Jilaekivll  r.  The  State, 

IHil 

4.  Error  to  state  that  a  contested  point  is  concekei). —  To  state  to 

the  jury  in  a  imn'der  ease  that  it  was  conceded  that  tlie  ileecdsed  wiis 
killed  with  a  pistol  was  error,  where  no  such  coi'.<'ession  was  made,  and 
the  weapon  us"(l  was  a  luateiial  (piestion  in  the  case.  That  tli(>  de- 
fendant denies  alt<tgether  that  be  conunittel  the  homicide  does  not 
admit  its  connnission  in  the  manner  claimed  Ity  the  slati'.  J  (I. 

5.  Other  offences  cannot  he  shown  unless  connectei).— Kvidence  of 

the  perpetration  by  the  del'endaid  of  a  crinii-  other  tlian  that  on  trial  is 


INDEX. 


029 


not  ndniissible  unless  such  oonnoction  bo  shown  botwoon  tbo  two  of- 
feiisoa  MS  tends  to  prove  that  if  Ibe  detent lunt  were  guilty  of  the  one,  he 
was  also  guilty  of  the  other.    Sican  v.  t'nin.,  '  188 

6.  Circumstances  explanatory  of  such  evidence  are  ADJUssiBUi;. —  A. 

and  B.  were  jointly  indicted  for  robbinji;  C.'s  store.  On  the  same  day 
and  in  tlie  same  locnlity,  D.'s  Itonse  was  also  roi)hed,  to  which  olfense  A. 
had  j)leaded  guilty  on  another  indictment.  The  commonuealth,  on  tlifi 
theory  that  A.  and  B.  were  members  of  nn  organization  banded  together 
to  commit  burglary,  f)lfered  evidence  of  A.'s  complicity  in  the  robbing 
of  D.'s  house  to  support  the  indictment  against  A.  aiid  B.  There  was 
some  evidence  that  on  the  day  in  ([uestion  A.  and  B.  were  seen  togetlur 
in  that  locality.  Held,  that  no  such  <.'onnection  was  established  between 
the  oiFenses  as  warranted  the  sulnnission  to  the  jury  of  tbe  evidence  of 
A.'s  comi)licity  in  the  robbery  of  D.'s  house,  so  as  to  affect  B,  Id. 

7.  Reading  i  i!OM  a  book  on  medical  .iuuisprudenx'e  not  introduced 

IN  evidence  or  proved  to  ue  oe  standard  authority. —  On  a  trial 
for  mnrder,  the  <listrict  attorney,  in  his  closing  arguinent  to  tbe 
jury,  n^ad,  "  as  a  ])ortion  of  his  argument,"  and  against  the  objection 
of  ilefcndant,  various  sections  from  a  book  called  "Browne's  ^Afedical 
Jiu'is]irnden(<'  of  Insanity;"  the  book  was  not  introduced  in  evidence, 
and  no  testini<iny  had  been  introdui-ed  to  sh()w  that  it  was  a  standai'd 
work  of  recounized  authority  on  the  subject  of  insanitv;  Iteld.  error. 
People  v.  Wheeler,  '  '  191 

8.  Declarations  to  physician  touciiinc}  piuxsnancy. —  Declarations  made 

to  a  ])hysician  of  bodily  tVelings  and  symptoms  of  preg  lancy  at  tbo 
time  of  examination,  are  admissible  in  evidence  as  piirt  of  the  facts  on 
which  his  opinion  is  founded.     Stuic  v.  Gcdiekc,  (3 

9.  Same  —  Cross-exajiination. —  A  witm-ss  of  the  state,  cross-examined  as 

to  the  declarations  of  the  patient  concerning  her  pregnancy,  ma«le  to 
him  as  a  i)hysician  din-ing  liis  examination  of  her  condition,  cannot 
bo  re-examined  as  to  other  unconnei  ted  asseilions  in  the  sanu'  conver- 
satii  n,  charging  the  defendant  with  criminal  acts  to  produce  mis- 
carriage. Id. 

10.  EviDi.NCE  AS  TO   PRIOR  ACTS. —  Acts  of  tho  defendant  at  other  times 

may  be  shown  as  temling  to  prove  the  intent  of  defendant,  and  if  com- 
IH'tent  to  prove  tbe  crime  charged,  it  is  no  objection  that  it  also  tended 
to  jirove  other  crimes.     Com.  v.  Coikiit,  15 

11.  Previous  oood  character. —  Previous  goo<l  character  is  not  of  itself  a 

defense,  but  is  a  circumstance  which  should  be  considered  by  the  jury 
in  connection  with  all  the  otlieri'videnie,  and  it  may  besuliicient  totum 
till'  scale  in  favor  of  tbe  a<cuseil,  l)Ut  its  value  as  (iefensive  evidence  in 
any  given  case  is  to  be  determined  by  the  jury.  State  of  loica  v.  Don- 
oriin,  25 

12.  EvioENCK  of  witness  deceased  sinx'E  former  trial. —  Where  a  dtv- 

ccascd  witness  testilied,  upon  ii  former  trial  of  the  same  party  for  tho 
same  oll'ense,  being  brougiit  "  face  to  face'"  witb  the  accused,  and  ('ross- 
examint'd  by  him,  it  iscom|ieteMt  upon  a  subseipient  trial  to  jirove  the 
testimony  of  such  deceased  witness;  and  such  proof  does  not  violate 
the  provision  of  the  constitution  of  the  state  which  givi>s  to  the  accused 
tbe  right  to  "  meet  the  witnesses  against  him  face  to  face,"  Iliiir  v. 
State,  127 

13.  EviDi'.NCE  OF  COURT  RF.PoRTP.R  AT  FoitMKR  TRIAL. — Wbero  a  court  re- 

porter is  sworn  as  a  witness  fortbe  purpose  ol  proving  the  testimony  of 
a  deceased  witness,  and  where  such  reporter  testifies  that  tbe  notes  of 
tbe  testimony  of  su<-li  deceased  witness  wei'c  accm-ately  taken  by  liim 
at  the  time  tbe  tc.-,timony  was  given,  sucb  notes  nuiy  be  used  by  the  re- 
pnner  in  giving  the  testimony  of  tbe  deceased  witness,  for  the  purpose 
of  n'freshing  his  memory,  uud  if  necessary  ho  may  road  the  testimony 


to  tbe  jury. 


id. 


5''.'  ' 


030 


AJIEHICAN  CRIMINxiL  REPOUTS. 


:|i# 


14.  E.1U0II  TO  itEAD  nF.couD  OP  Divoncn. —  It  was  ormr  to  roail  in  tlio  hcarinj? 

of  tlio  Jury  the  rocoivl  «t'  the  court  in  the  <livoire  prooee'lings  to  ot;talJ- 
llsh  tho  co'mpetoiicy  of  tlio  wile  »»  a  v»itiie.«,  it  being  u  <,uet.tiou  bolely 
for  tho  court  to  determine.    IState  v.  Ilminctt,  38 

15.  On  CIIOSS-EXAMINATION   ILL-Tr.EATMENT  OF  WIFE  CANrrOT  liT:  SllOWn.—  It 

was  error  to  allow  the  state's  attorney  to  go  into  an  in((Vi!i'v,  a;;ainst  an 
cxeoption,  on  the  erosi--exa,niination  of  tlx'  r(!,s|,()n(l(>nt,  a«  to  whether  he 
lijid  been  eoniplained  of  and  lined  by  a  town  grand  juror  l't)r  ill-treat- 
ment of  bis  wife.  Id, 

16.  AD:iussiiiiLiTY  OF  STENOCiUAriiEU's  NOTFs. —  To  eonlva(li(  t  the  resjondent 

by  proving  that  he  had  te.-tilie. I  ditt'erently  on  the  loriner  trial  under 
Uiesunieindi(tnii!nt,  thea.dniissihility  of  the  stenographer's  notes  of  bis 
crosri-oxaniination  de[)tMided  on  their  r(>K'vaney;  if  relevant,  admissible; 
otherwise,  not;  hence,  it  was  the  du|y  of  counsel  to  have  selected  those 
passaged  contra  lietory  to  his  last  ev'ideucL;.  Id. 

17.  SAira  —  STENOO?iAPiiEU  siioui.D  CE  swoiiN. —  A  t  tenographov,  although  a 

Bworn  officer  of  the  court,  when  he  reads  his  notes  of  the  tc^liinony  of  .i 
former  trial,  as  evidence,  nuist  be  sworn  like  any  other  witness;  but  if 
not,  if  known  to  the  opj'osite  counsel,  tlie  objection  should  be  raised  in 
season,  so  that  the  oversight  may  l)e  corrected.  Id. 

Weio:it  Oj'  defendant' -i  t.c-itim  )NY  in  criminal  case,  when  testi- 
F»'1N(»  IN  HIS  OWN  BEHALF. —  On  the  trial  of  one  for  an  assault  with 
int(!nt  to  murder,  the  c-onrt  inslrn<ted  the  jury  tha.t  th(>  credibility 
and  weight  to  be  given  to  the  testimony  of  the  defendant  testifying 
m  bis  own  b<'half,  was  a  matter  fcr  the  jury,  and  that  in  weighing 
the  defendant's  e\  i<lence  they  )ind  ii  right  to  take  into  consideration 
liis  manner  of  testilMng.  Ihi'  rc;isonal)ieriess  ol  his  ac<'(iuiit  of  the 
U'ansaction,  and  his  mlere.-t  in  the  result.  Ililil.  that  there  was  no 
error  in  giving  the  instruction.     Dunn  v.  Tin'  I 'eo pic,  5J 

PAROI,   NOT   ADMlSSIin.E    TO    SHOW     K::S!)IA'TI()N    ok    COMMON   OOFNCII,. — 


13. 


Tl 


1(1  ilelcMi 


lant 


wius  a  nicnioer  oi 


tl 


U'  coinni  i:i  (•(MUicil  of  C  ipe  M;iv,  and 


wa.s  indicted,  under  the  statute,  for  furnishing  supjilies  which  had  l:een 
paid  for  b\- such  council ;  to  jirove  sncli  payment,  the  trcasurei' of  the 
city  testified  that  he  made  such  i>avm(>:it,  and  that  the  council  had, 
Iiv  resohition,  ratdie  1  the  same,  llrld,  thit  such  proof  ol  the  contents 
of  su:!li  resohition  w;us  illegal.     Hlnte  r.  Mit'jnttli,  x!7'.> 

80.   Ol'"  THE  EVIDENCE   AOAINST  ONE  CHAR  lED   WITH   MUUDK;:. —  On  the  Iri.al 

of  t\v,)  pens;).'!-;  oa  a  (;h  irg  '  Ol'  mar  ler  eomnitt.' 1  on  .July  10,  IHi!!.  by 
compelling  ;i  pasuviger  t )  jii  n  i  i'ro;u  u  r.iihv.iy  tr.iiii  while  it  wa.'i  in 
motion,  t.vo  witnc.-i.ivM  for  th'  pe:>;)li!  \v>'re  allow.- 1  to  ti'.tily,  over  an 
ol)ie^'tio'.i.  th;it  thev  s:v\v  tlio  «b'le  i  hints,  an  I  two  ollu'r.i,  with  whom 


tJio  (1. 


llMtl 


in  lict  '1  for  th  !  m  I/ ler.  tojj'ilu'ron  t^ 


le 


■anroaii 


track  on  .July  8.  l^Hl,  and  that  one  of  tiiem  hid  a  revolver.     Held,  th;  t 


i-s  no  legal  olijeclion   to  this  te.stimony.    Adiiiiis  ct  id.  r.  'I In 

■)1 
St.  Same. — Tn  the  same  case,  thi' state's  attorney,  in  the  examination  of  on(>of 


til 
I'rople, 


tbes(!  witni'-'Ses,  prodm-e  I  a  watch  chain,  and  the  witn 


nd  it 


Lis  chain,  and  that  he  ha  1  it  on  wlien  he  met  th(>  d<'rcMdaMt.'<  and  the 
two  ()th(;rs  who  W(>re  indict, 'd.  on  the  evening  of  July  f.  1MS;5, —  which 
Wiis  objectisl  to.  lli'lil,  that  while  the  evidence  as  to  the  watch  chain 
might  properly  enough  have  been  exclude  I  as  irrelevant,  yet  it  was  not 


etilH  'i(Mt1v  harmlnl  t  >  t'l  '  il 


li  it-i  t  I  m  I'i 


its  a  bni.'  slon  materia 


Ci'ror.     It  w.)nld  nut  justify  an  inl'e.-.'.ice  tliat  the  witness  had  been 


robbed  by  the  four  men. 


Id. 


23.  Ramf. —  So,  too,  one  of  thesis  wilncsse:'-,  in  answer  to  the  incpiiry  whether 
tliere  was  anything  unusual  tocanse  him  to  reme;nliei'  the  t  nieof  seeing 
Que  of  the  defendants  on  the  morinng  of  July  H.  IKH'i.  saiti  a  man  wa.s 
found  (h.-ad  that  morning, —  a  stock  man,  who  hail  fallen  from  a  train. 
Held,  that  the  eonciluding  part  of  this  evidence  repelled  any  inference 
tliut  this  man,  Iih),  hail  been  thrown  from  the  train  by  the  .'-ame  men, 
and  its  adiui::sioa  was  not  error.  Jd. 


INDEX. 


G31 


no 


23.  At  to  conduct  of  nor-fficurou. —  It  iscTor,  in  trying:  .1  criminal  cnso,  to 

i>X(ludo  qiK'stions  ni  ti'  tho  condiu-t  of  the  prosi'cntion  in  sookinj!;  to 
indui'o  till"  witness  to '-niijircsLS  totitlinony  or  volunt.iiT  im^n'ojicr  testi- 
luony.     The  People  v.  Hall,  357 

24.  ExPFRT  test;m  iny  —Scientific  books,  f.tc.— Exjicrts  cannot  bo  exiim- 

incvl  u;)on  tliy  u-ics  that  ave  contrary  to  tho  nnciatrii  licte  I  fu'ts  of  tlio 
case;  sncli  testimony  is  lo;.;ally  iulmisHihle  on  the  tvi"<>u'>il  <"'ly,  that 
ordinary  jui-ynien  have  no  uncii  si>ecial  lino\vle(l.u,e  as  will  cnaltle  tlicni 
t.)  understand  the  facts  uliown,  witliout  interiiretation;  it  must,  tliere- 
fore,  he  jciven  }»y  livin;;'  witn(>ssos  who  can  l)e  cross-examined  ;  and  tho 
roadiny  of  ai'ientilic  hoolcs  to  tlie  jury,  Jis  evidence  in  itsi^lf,  is  error.    Ill, 

25.  Prophu  function  of  experts.—  The  pro;)er  funirtlon  of  witnesses  sub- 

lueaajd  to  j^ive  testimony  as  "experts"  is  to  instruct  t'ae  court  iind 
jury  in  matters  so  far  reniDve.l  from  the  onlimuy  i)ur;;uits  of  life,  that 
ju;curato   kiiowled.i^e  of  ilieai  can  only  he  .-ralne  I  by  study  and  ox- 

fierience;  the  object  bein.u,- 1)  ena'.)lel)oth  court  and  jury  to  ju;l;;e  intol- 
ifj;ently  i)f  the  force  and  a;)i)licatio:i  of  the  several  fauts  inti'oduced  in 
evidence.     Coijle  v.  Com.,  5)T9 

20.  Samf.  —  Opinion  of,  wiif.n  evid::nc;e  not  confltctini.— In  a  v»*opcr 
ca-ic  for  expert  testimony,  where  the  facts  are  a  Imitt  vl,  or  proved  by 
evidence  not  conllictin;;-,  the  opinion  of  an  expert  upon  such  facts  13 
a  Imlssible  as  a  si'ie.itili  •  dedut-tion.  Id. 

£7.  Sa'.if,  —  I3ut  when  coxflkting,  he  cannot  nr.  asxe!)  opinion  drawn 
FitoM  wiioi.K  EViiK'.Ncr:. —  But  where  the  evidence  is  conllictin.!?,  an  ex- 
jieit  caimot  be  aslicd  his  opinion,  aa  derived  from  the  whole  evidence. 
T.ie  ([ncstions  to  him  shoulil  state  specili  ally  the  particular  facts  in 
evide.ice,  hypothelically  assumin;?  them  to  b^i  true,  u;)on  which  he  is 
to  express  his  opinion.  lie  should  be  iislced,  l)y  independt^nt  (jucstions, 
his  opinion  as  to  facts  te^lilied  to  on  the  o.ie  lian<l,  and  his  opinion 
ius  to  opposin;;  fads  tentilicd  to  on  the  other  band,  in  such  manner 
that  the  jury  can  kiiov,-  upon  what  particular  state  of  facts  his  several 
oninions  were  based.  Id. 

28.  InvVNITY  —  When  inte:iposi;3  as  a  defense. —  Tho  defense  of  insanity 
imist  1)0  establish;'  1  by  a  i)r>'|)on  Iv-rance  of  proof;  anrl,  in  sucli  ciuio,  tho 
burth  'n  is  not  on  the  st  it  ■  t)  satisfy  tlio  jury  of  th'.'stuiity  of  the  jnas- 
oner  beyond  a  reasonable  doaUt.     Gi'jvjs  u.  Tin;  Sl(ili\  333 

23.  Insanity  produce:)  by  intoxication,  as  a  d:::':;nse. — Temporary  in- 
sanity iirotuce.l  innnc  liat;'iy  by  intoxication  furnishes  no  excuse  for 
th<'  commission  of  a  homicide  or  other  crime,  but  a  lixed  insanity  does, 
Uj)iil<)iie  1:  The  People,  395 

C3.  Same  —  Qi'Eation  of  iwrT. —  Whether  a  party  committin-j;  a  crimo  is 
under  th(!  iidlnence  of  a  lixel  iinanity,  or  a  temiorary  one  induced 
immediately  by  intox'cation,  is  a  (iU(;stion  of  fact  for  the  jiu\v,  and 
their  verdict  will  not  be  ilisturbed  unless  it  is  ck^arly  a.^ainst  the  evi- 
diMice.  Id. 

ni.  Same. —  While  it  is  true  th(>r<?  nuist  be  a  jcMnt  union  of  act  and  int(>ntion, 
or  criminal  nc.;li,u;eace,  to  constitute  a  (a'iminal  olfense.  yi't  when  with- 
out intoxication  the  law  will  impui.-  t  )  the  ail  a  criminal  inte;it,  — jus, 
in  tlie  case  of  ;i  wanton  killiu';  of  another  witliout  jirovocatioii,  volun- 
tary tlrmdcenness  is  not  a\  ai!abl(>  todisprnve  such  intiMt,  so  as  to  reduce 
the  crime  from  murder  to  manslan  rhter.  Id. 

83.  Same. —  Voluntary  intoxicatioi  furnishes  noex  aue  for  crime  committed 
u'l  ler  it-i  inllu  'ni';',  even  it  th'  int.ixication  i<  s)  extreiuis  as  to  mako 
th  '  an  lior  ol'  the  crim  •  uni'onsiuous  of  what  lio  is  iloin^,  or  to  t;reute  a 
teniporary  insanity.  Id. 

33.  Same  — I'iViDENcE  of  Di'.Fr.NDVNT's  PHEVioFs  iiAiiiT.'^  OF  intoxication.— 
0,1  the  trial  of  a  delendaul  foi-  nninler,  when  insmiity  is  set  up  in  de- 
fense, and  he  is  hiiowii  to  iui\e  bittui  intoxicated  at  the  time  ot  the 


632 


AMERICAN  CRIMINAL  REPORTS. 


m' 


homicide,  evirlence  of  his  previous  intoxication  will  ho  projiorly  re- 
ceived Irom  the  prosecution,  as  bcarinfj;  upon  tlie  ((lU'stion  of  intoxica- 
tion at  tiie  time  of  the  killmg,  and  of  the  conduct  of  the  (kifendant 
while  in  that  state.  Jd. 

84.  EviDENCF,  —  In  rebuttal — Time  of  admis«iox.— Tlie  time  of  rcceiv- 

iuK  evidence  is  so  niucli  a  matter  of  discretion  witli  tlio  court  trvin;^  a 
case,  that  it  will  not  be  a  K''""'id  for  reverriinp;  a  judf^mciit  1  hat  evi- 
dence is  allowed  in  rebuttal  which  in  strictness  is  n<it  proi)crly  so 
receivable.  Id. 

85.  Sami:  — Opinions  of  persons  not  experts,  as  to  sanity.— On  the  trial 

of  one  for  crime,  tlie  opinions  of  ncif^-liliors  and  ac((uai!itanccs  of  the 
defendant,  who  are  not  experts,  nniy  be  j^iven  iis  to  his  sanity  or  insan- 
ity, founded  on  their  actual  observations.  Id. 

86.  EXCT.AMATION    OF  ONE    OF  SEVERAL   PERSONS  WHO    HAD    COMMITTED  AN 

UNi-vwi'TTii  ACT. —  Several  persons,  incluilin;;  one  who  was  put  njion  trial 
for  murder,  while  traveiinK  aion^  the  road  entered  an  orchard  l»y  the 
road  side,  wlien,  without  juslilication,  in  aditticulty  witli  the  owner, 
who  had  ordei'etl  them  to  k<'  "'it  of  his  orchard,  some  one  of  tli(>  party, 
by  a  l)lo\v  with  a  clod,  killed  tiie  owner,  and  they  all  (Ikmi  .L!;ot  into  the 
wa-;'(in  and  started  toward  their  homes.  A  |)arty  in  pursuit  of  tluim, 
8eekin;j;'  to  have  them  arrested.  ))assed  the  w;iji;oii,  when  ^ome  one  of 
them  caile  1  out,  "Hello,  good-lookinj;- fellow!  "  or  soniethint;- liUc  tliat, 
but  snvh  witness  so  addressed  could  not  say  the  defendant  was  in  the 
wa'j;oii  at  that  time.  It  appeared,  however,  from  the  defendant's  own 
testimony,  that  lie  did  not  net  out  of  tiie  wa.y;on  until  after  tliev 
reached  the  next  point  wliere  they  stoppeil.  Ilrld,  that  the  court  prop- 
erly refused  to  strike;  out  of  tlic;  testimony  the  words  .so  spoken  to  the 
witness.     Ritzman  v.  The  People,  40;} 

87.  Cross-examination — LATiTrnE  allowed. —  Great  latitude  should  al- 

ways be  allowed  in  cross-examination,  esiiecially  in  a  capitiil  c;ise,  and 
the  court  should  never  interpost!  exce[>t  wiiere  there  isa  manifest  aliuse 
of  the  rif;:ht.  Id. 

88.  Sjvme.  —  Where  a  witness,  on  a  second  examination  as  to  a  particular 

transaction,  states  an  imp4)ita  d  fact  omitie(l  in  jiis  previous  ;ircnunt  of 
the  mattei-,  his  attention,  on  ei-oss-exiunination,  miiy  properly  be  called 
to  the  fai  t.  and  he  be  required  to  exjjlain  why  the  omission  was  made 
in  bis  lir;t  statement.  /(/. 

89.  CONELicTLNd  STATKMKNTS. — So,  Oil  tile  trial  of  one  for  nuu'der,  the  dciith 

haviii;^'  been  caused  by  a  blow  with  a  clod  from  the  liaiwl  of  s')me.  one 
of  several  trespassers,  a  witness  who  was  present  at  the  time  of  the 
killini;.  stated,  on  his  exnmiiiiition  in  chief,  tliiit  the  deren<l;int  then 
beini;- trieil,  during  the  tr;msaetii>n  called  tla;  deeeased  "a  son  of  a 
V)itcli."  On  cross-examination  till!  witness  was  iiskecl  it  in  bis  I'drmer 
oxamintition  he  bad  made  any  such  st;ilemeiit  ns  that.  On  objeclidii, 
the  court  Ix'low  lielil  that  tlie  in(|iiirv  should  be  limited  to  tli<'  (piestions 
actually  asked  and  the  answers  L;ivi'n  in  the  former  ev:iiiiin;it  inn.  and 
that  tlie  ipiestion  was  improper,  llcid.  (Iiat  the  rule  laid  down  by  tlie 
court  wiis  rather  sti'inj;-ent.  The  iii()iiiry  mii^bt  well  be  made,  with  the 
view  to  as  •>  rtain  the  motive  of  the  witness  in  omittiii.L;-  the  stat<'meiit 
on  his  examinalion  in  chief,  in  i'a.se  it  should  turn  out  Ik;  had  done  so. 

Id. 

40.  Hearsay. —  On  the  ipiestion  ns  to  the  identification    of  t!ie    body  of 

the  person  alle.i^cil  to  have  been  niin'dered.  it  is  not  competent  |o 
show  by  till' siirp'oii  who  niiide  the  paxl-niorfeiii  examiintioii  of  the 
body  of  a  corpse  cliiimed  by  th"  prosecution  to  b<>  that  of  the  mnrdeivd 
l)erson.  that  the  body  was  iilentitied  to  him  by  anotner.  lltmt  v. 
Utah,  ■    4ir 

41.  Em'kut  Ti'sTHfONY  NOT  ADMissiULE,  ETC. —  Oil  the  tri;il  of  Mil  indictment 

under  tlie  clause  of  the  Penal  Code  which  makes  the  sellinij,',  loiuiiiin', 
giviii^,'  away  or  showiiij;-  of  an  obscene  or  indecent  book,  svritiny;,  pict- 


INDEX. 


633 


Ure  or  photo,iji-ap1i  a  inisflemennor,  tlio  qupstion  of  ohsi-otiity  or  indo- 
coiicv  is  one  tluit  lalls  witliiii  tlu>  vaii;j;(' i)f  onliiiarv  iiit('lli;4<'ii(X',  and 
docs  not  rcipiiro  tlie  toHtiiuouy  of  an  oxnert  in  litoratni-i-  ov  art.  Tlie 
People  r.  Midler,  ioi 

43.  Samk. —  On  tlio  trial  of  an  inilictinpiit  for  scllin?;;  ol>srpne  and  indocpnt 
j)li()to<^raphs,  the  dcfundant  callcil  as  a  witness  an  artist,  and  askod  liim 
wlu^tlior  tlioro  is  a  distin,i;iiisliin,t!;  line,  as  under^^tood  l)y  artisis,  Ix'twi-en 
pare  anil  oliswno  and  indeceiit  art.  This  was  oiijecteil  to  and  exelndeil. 
JTild,  no  error.  If  the  (inestion  was  intended  simply  to  l)rin.Lj  ont  the 
fact  tliat  pictnrosnii.s^iit  l)c  citiier  decent  or  indecent,  aiid  tliat  tiic<-anons 
of  [>nre  art  wonld  accept  tlioso  of  on(!  class  and  reject  the  others,  it  was 
jiroperly  rejecteil  as  an  attempt  to  prove  a  self-evident  jiroposition:  hut 
if  the  (piestion  was  intende  I  (o  he  followed  hy  proof  that,  according;'  to 
tlie  artist's  standard,  the  ]»hotoj;'raplis  were  not  oiisceiie  or  indecent,  it 
was  [)roporly  rejected,  assncli  proof  was  incoinpctont.  It  was  liivcwiso 
licid  that  the  intent  of  tli(>  defendant  in  selhn;j;  the  photoj^'raphs  waa 
iioi  an  element  in  det;'i'mininK  his  f^uilt,  and  thai  therefore  ovidenco  of 
intent  wius  ineoni])i'tent.  Id. 

43.  SkcoXIIAUY  EVIDEXllK   III'.LD   INCOMPKTKNT  TO  SHOW  DEFENDANT  TI.VD  NO 

I'KKMrr. —  In  a  criminal  prosecution  aicainst  a  <lefendant  for  sellinj^  in- 
toxicating; liipiors  wiiiiout  takinu;  ont  or  liavinu;  a  [lermit,  the  county 
attoriK'V  testilied  tliat  h(^  was  acquainted  with  t!ie,  prohati;  jud.ije  of  tho 
county;  that  lie  understood  Ik;  was  absent  from  home;  tiiat  tiie  book 
wiiicii  lie  pi-odnced  was  th;'  Jonrnal  of  permits  kept  by  the  prohato 
,ind<;(>;  that  it  contained  all  thedrnuiijists'  iieniiits  issued  l)y  the  probate 
,iudj;e;  that  Ik^  had  looked  into  the  other  joiu'nals  kept  by  the  pn)- 
l)a(e  judj;e,  and  had  been  unalile  to  linl  any  record  of  ])ermit.i  therein; 
that  lie  had  fre(|uently  heard  the  iirobab^  jnd.i^e  testify  in  lii|nor  cases 
that  all  of  the  records  of  permits  were  kept  in  the  book  produicil  by 
liim;  that  the  jirobate  jud'.ve  had  another  Journal  in  which  lu;  kept  .1 
record  of  the  business  of  iiis  court;  that  lie  went  into  t!u>  ollice  of  tin* 
])rohat(!  Judji'e  and  ^ot  the  book  when  the  .judj>'e  was  not  there:  that 
there  were  other  jonrtiais  in  his  ollice :  that  the  book  containe(l  nothin<; 
l)ut  blanks  for  recordin;;  dru'4';-ists'  ](ermits.  aii(l  tlu'renpon,  a.u;aiiist  tho 
objection  of  the  defendant,  the  court  periiiitti'  I  such  book  or  journal  of 
permits  to  bo  introduced  in  evidence.     jIlJU  error.     Tlic  State  V.  Vank. 

485 

44.  Te^T1:\IONY  OE  witness  not  excluded  RErAl'SE  n^NTRADtrTED  IN  PAKT. — 

It  is  not  error  to  refuse  to  exclude  the  whole  ti'stimony  of  a  witness 
from  tile  case,  because  parts  of  his  evidence  are  contradicted  by  other 
witnesses.     Olifcr  v.  The  Slide,  ').\i 

45.  SED'.i'TKIN  —  SOCIAE    ATTKNTHiNS   nut  Sl-EKICIENT   C'OliRO!U)I{ATI0N. —  In 

a  trial  for  sedii'tioii  under  pr  uniMf  of  iiiarria.ni",  evidence  of  such  so- 
cial attentions  on  the  part  of  the  defemlant  to  the  prosecutrix,  !us 
nccompaiiyinii'  Ikv  from  elinrch,  caliinn'  on  her  ;il  lite  house  of  her  par- 
ents, and  I  here  wait  inn'  on  her  now  and  i  hen  fur  two  vcars.  is  not  snlli- 
fi«nl  to  conolioiale  the  prmeciitriv'^.  testimony  to  the  eifcct  that  a 
|>o>mi-.e  of  marria.;!'  was  made  to  her,  and  will  not  warrant  tho  Jnry 
in  lindint;'  that  Vact  in  the  altirmative.     Rier  r.  Cimi.,  r)02 

4t5.  CoNTlMTioN  OK  l>i".l'i',Nl)A\T.— Where  there  is  testimony  chat  the  tlefend- 
aiil  called  on  th"  pro-\cntrix'  ■  mother  and  expressed  i-ontrition  for  wliat 
lie  had  done,  and  deflai'cd  his  willinuiiess  at  the  same  time  to  inako 
amends  by  innrr>  iiii;-  the  prosei-iitriv  altera  time,  such  te-t  iinonv  in  not 
e\iilence  from  which  a  jury  could  safely  tuid  a  iirevions  ])iM'iiisc  to 
marry.  Id. 

47.  Wiiimoi.DlNti  Ti:sTiMONV  \\\  iMto.-M  t  TiciN.— Failure  on  the  part  of  (h,. 
pvoM'ciition  tocidi  thefatherv>r  the  proseciitilv.  who  was  pr<'seiit  at  the 
eoiivcrsatioii.  loii'>tity  to  iiarticnlars  thereof,  was  a  circiiiiistani'e  which 
Would  have  jtistili  •  I  ao  inrerciice  nnl'a\ orahle  to  tli''  prosrcntion,  and 
tlieioiirl  Would  !ia\(b''n  warranted  so  to  iiist'-uct  the  jnry  Id. 


G31 


AMEKICAN  CnnilXAL  REPORTS. 


W 

k 


i.3.  Sr\Tr:Mr-NT  to  Tiimo  rnn'^ON. —  Tratimonyof  a  convorsntlon  h'^twnon 
t!io  (luit'jidait  anil  a  tliiivl  i)L'r.;i)!i,  in  tin)  cimrso  of  wliidi  tlio  d.-roMljiiit 
uaiil,  i.i  roiViviico  to  tlu;  iiuiIUt  in  li;i;itl,  iW.ii  "  lio  vv.nil.l  };ivi'  (','00  t) 
f:otUo  it,  iiii  I  no  inorj;  tint  liu  w.is  guilty  of  th3  criuu,"  w.u  not  (svi- 
dwico  of  a  proniiHu  of  inarriajo.  Id, 

A").  U.v::'3MM-jNic\TE:)Tim';.\T.^Ar)5iis5inT,'5u:fD-j:ncE!irAiNCiu?rijnTANC?.'5.— 
In  a  tri:il  for  li(vni(;ivlo,  wIi.t,'  tlu  (^ii  >  itia.i  is  u<  t )  w'.\  it  w  u  ilo  -.vLij  I'.-i 
uttitii  le  at  tho  tinnj  of  thu  fat'il  eiiLvnintcr,  voL'ont  tlnvat)  may  bu  -oniu 
ivlok'a.it  to  s'lUiw  tliat  tliis  attitu  11*  wai  o:\.'  hostile  t » tli.' iL'icnlant. 
even  t'lou  j;li  sir-li  tlinvit.-t  WlTo  not  coininirnral.u  I  to  (U-foadarit.  Tlio 
eviilunuj  is  not  rolcva  it  t>  show  tli.;  <fto  aninit  of  tlio  <lyrca'laiit,  Imt  it 
ni'iy  l)Li  ivkivant  to  show  th  it,  at  th  ■  tini."  of  t!iu  in  '.'tin;^,  thj  tloooai;.'  1 
was  sj,;:;ing  (h;f(mJaat'rf  lifo.     Wijjina  v.  The  Pcoi>lc,  41)1 

CD.  Rap;!. —  Proii-.-utrix  may  bo  iiitjriMjitj  1  ai  to  \\>x  ohJL':!t  in  p;oin.;  t:) 
tlu  plajL' wilier  J  t!i3  ra;).>  wa.i  alio  pi  tj  lia/objjn  cj.u.ulltjJ.  Tlia 
State  V.  Ilartnctt,  "  07i 

CI.  IlJiiUNO  AN'O  wi;';;  — STATr^nDNT  or  wik:',  in  pn7.-',2Mc;H  o?  iiUinANi)  — 
Aa.Ml-i-ilo.N'. —  U.);):it'i;.' trial  or"  ajiriso  it  forfi^loaiouily  roL'oivin\;st.>lo:i 
pro,i;Tty,  a  list  of  tiie  st  )K':i  a"ti::lts  waicli  t'.u  jn'iso.usr,  wlio  w.u  a 
marine  stoiv  dcalpr,  ha  I  b  >ii  v'>t.  ^^'i-*  r.'V'ivol  in  cvLU-ac!!  in  or.IiT 
to  •il'.o.v  th  itli;'  lia;l  l)i>u  ;ht  t  scaiat  a'.i  nailer  v.iluc.  Tli  ^ciicainstaaeea 
u  1  lor  wiiieli  tlie  list  was  Wi'itl.' i  \\\:\\'  as  follows:  A  [inlicj  coastaUlo 
nslvc  1  t!iL'  i>ris;)aer  txio  i-iiil  -r  wliea  h  >  In  1  b.m^ht  th.)  st  )!ea  prajK-rty, 
to  wliieh  tiK'  prisoaor  i\' ;)li(vl  tint  his  wife  sh;)iil  I  m  I'vo  oat  a  list  of  it, 
aa  1  oa  t!r.'  next  day  tlr.)  i>r'sii  "/'s  wif<',  in  Inr  liinb  la  I's  pr.>;'a',!. 
haade  1 1 )  an  )lluT  coastabk-  tlr.'  list  t.'nleri,'  I  inovideace,  siyi:i:^  in  her 
hin'-iaail's  liearin ',  "  T ais  is  a  list  of  what  Wis  Ikhi 'iit,  aa  I  wint  wa 


Ravo  lor  t.ieai. 


a.!  ([iie-.tioa  r. 


1  w 


1  i  w  1  !t.i  ir 


sn  -h  list  VV.13 


l)ro;K>vly  a  Imitte  I  in  evi  leacL-.     ILid,  that  thcj  list  w.is  dearly  a  Imis- 
dble.     Tlic  Que  ■!>  v.  ]iJ<illofj, 


C2.  FonuoN' iN'.':>;i:' :>:!\Ti')N'  ji^vm  s'i;)'.v:i  nv  iNm 


■T  fa'i1)::n': 


■U: 


th;>  trial  of  ail  inlictauat,  t;!iar  ;in'^  fov^ery  ia   Ihe  sL'.;-oa:l  de;^r< 


:)» 


III 


m  ilcin.: 


a'l 


1  ea'ir: 


of  a  plat  •  in  t!ie  form  a  a  1  similitii  le  of  a 


ni't  •  of  a  lianl;   itirorporate  1  in   Havana,  nader  the  laws  of  Sjiain, 
wti3;ioi  b_^h  I'f  ol'  t'l  !'»:•)!  >;a!;i ) »  tMlili'lt'nt  k;  in  1  b.va  at  l! 


ill  II  ivaiia  an.l  saw  basiuiss  earrie  1  oa  tlr.-re:  that  th. 


oaa  i  If 


•u  'J 


note-,  wiiich  wer 


'ive  las  in  )  lev:  t'nt  he  saw  t!ie;irtir!(Mof  a -.sa  ria- 


tioa,  aa  1  fraai  t!r' n,  ;i  1 1  w'l  it  In  saw  in  a  new. 


,  tlu'  oHi  -ial  orrai 


of  the  pioveriimeat.  In  b.'liev.il  th  >  baa';  wa-i  in-oraorate  1  u  i  ler  t'lJ 


h 


»f  S; 


);im. 


a  e;i  vrav. 


<'oaii.'  -te  1  with  the  Aai  -rieaa  D  v.x'.i  Noli 


C  ampaiiy,  also  testili;,' 1   that  ho  ea;:;ravod   the  i)lates  from  wlii'h  tin 


Keauine  notes  weiv;  ))rinte  1.  an  1  that  they 


th  •!!  in  th  >  vault  i  of 


tliat  coaiaaiiy.     //'/'/,  tint  th'  (!vi  It 


wa*  sulli  -iv-at  to  e.;t  ihlish  t'n 


lo.Jjal  oxii  teneo  of  the  bank.     The  l\'oplc  c.  D'Arjeimoiii;  2VJ 

C3.  Ctvii.  PJtvc'Trcc  A'.t  not  AP:'i,ir',\nr.^.— The  provisio!is  of  the  Cado  of 
Civil  Proet!  lure,  in  lAin'ciertiii  ■  1  copii's  of  th;>  re  'or  Is  of  forei  ra  eouti- 


trio 


dunce, 


applicable. 


ind  ia\'.;eribiir.;  the  ii 


laaaer  of  autlieat;e:ilioa,  a;'.;  iii>t 


CI.  A 


1 1  is.  nnil'M"  no  law   cat 'tie  1  to  a  conrn's^ion  to  ta'ce  thi'  t;'  ■timany 


of  witaeises  residin,.;  in  aiiota;!r  state.     The  Slate  (\  Fidj'ord, 


;:3 


AaoRTioN,  other  attemats  to  com  nit  may  be  shown,  3.     Admiwio?!^  an.t 
C;)Ni<\'w;ioN's.     Adi-'LTKUT,  nroaf  of  oth-a-aets  inadmissiule,  !J.    Aii^ori, 


inativo  !iny  bo  show; 


li.l  JKZ-^i.HMUNT,  variounu-ts  of.  !).    B.UAMY, 


proof  of  first   iinrria  !,e,  ct-.,  2,  ;5.     1?.!IUK,UV,  othur  actj  of,  5.     I.MMA- 


TERIAL  AvEini!:.Nr, 


Dbioui):i;iLY  llou.;::,  1. 


EXPERTS. 
Eeo  Evn)::NCE,  '24.  2."),  ','(},  ::7,  41,  4.0.    0;;s(;i:ne  LiTRnATUiiE,  1,  S. 


INDEX. 


C35 


)in'j;  to 

.     TUc, 

07J 


:  111  iicr 

lit  \V>) 
st  WW 
a  liiiis- 

530 


EirTRADITION. 
1.  rrjso::r,n  can  ee  'rrjT:D  o:;[,y  roi?  rii;-,  ovvii,: 


.v.o,,...,..  ^,..,  i,^  ......^  >......   .>.,.    ...r,  v,ii-^.,.„.  Foil  WinCII  EXTKADITED. 

A  jK-rsan  cxtnuiite.I  iin  Icr  llii- pmvisioMsof  tlio  tn-atyof  18k'.  Iwtwoen 
tlu'  Ullit.^l  Stiit.'s  till  1  (!/i';it  Di'itJiin,  trie  1.  cojivicto  I  iui:l  ssiMit'nciMl  for 
tlic  crime  n;)();i  v/iiicli  lu-  w.is  i'x(»m  lit  '.1,  (■.■innot  l):Mlct:iiii;'  I  in  ciisto.ly 
an  I  prosi'ciiti'  1  for  a  (lilf-'iv'  it  crini  •  tli;i;i  tlie  o;n;  siKviti.'.l  in  tliu  war- 
rant of  t'xtnulition.    State  r.  Vandrrpool,  SO;! 

2.  Con ^Tii'j  ;'Ti(>N  ov  tu :i  vr v.—  U.i  k-r  tli-j  c;i)-,iHtitutio:i  of  tlio  Unite  1  Stato:% 
tlic  |nv)visio;is  of  tliis  trc.ity  nw.  part  of  tlio  law  of  tlic  iaml,  ciiforc  -jihlo 
by  tlie  jihlicial  tribnniils  ia  bjlialf  of  a  pjr.iDH  :«)  clL'taiiiuJ  uuJ  prose- 
c'liteil.  /(/. 

0.   Pl.!^.>.   TO  JUr.ISDI?TION'  —  T'.LTVIAI.  AT^UV.-iT  IX  l'On''i:JN  COUNTIIV.  —  To  .in 

iii'lictiiioit  for  (Mnl)i'Z/,lc:ii',':it  an;l  huv'ony  tlie<k'fi'nilaiit  |)lfa,k'(l  to  tlio 
jurisliction  of  the  ivmrt.  in  siil)st;inc(.',  tliat  tlio  pr>'siili'!it  of  the  UnltoJ 
States.  u;)OTi  t'l;;  writt.'ii  r^'in^'stof  tlio  j:;ov('riior  of  this  state,  issuoJ  an 
fxtrailitioii  warrant  I  >  th:'  <;-.)veriini.,'at  of  IVru  for  the  surroa.lor  oE 
tlie  ilelViHlait.  nailer  t!ie  tiv'aty  with  that  ^'overnnieiit,  to  be  brou.'^lit 
baelv  to  tills  eouatry  on  a  ehar,-;('  of  huveny ;  t'lat  on  the  same  day  tliia 
warrant  was  issiit^l,  the  se  'r.'tary  of  state  niaik'  a  written  repiest  upon 
tlie  Unit:' I  States  eoasiil  aetiii'^  at  Lima,  to  procure  tlu?  executive  of 
Peru  to  surrender  the  ilefeailaat  to  o:w  .Jalian.  U!i  ler  saiil  treaty;  that 
no  re  |U  '.4  wa-i  vwn-  m.i  ie  by  said  c;)n>ial,  or  by  JuUan,  or  by  any 
otiier  person,  u;)'>:i  any  of  the  authoritie  i  of  t'la  jj;.>vernm(>nt  of  Peru 
for  the  siirreiiiier  of  (lelV  i  lant.  nor  was  any  consent  or  authority 
given  liyaiy  of  the  autliorities  or  avents  of  Pern,  to  Julian  or  to  .any 
other  person,  to  ai'rest  an  1  reni,>ve  defendant  from  Peru;  atul  tliat 
Oil  A;iril  !>.  ISS  !,  wliile  t'le  di'fen  ia:it  was  domicile  1  at  Lima,  in  Peru, 
Julian,  witli  the  aid  of  per«)ns  whose  nam  -s  were  unlcnown,  without 
nny  authority  or  warrant  Irom  the  aatlioritie s  ov  diplom.atic  a.';,ents  of 
Pv-ru.  arreste  1  the  defendait.  and  foreed  liini  to;,;o  tot'alhio,  and  there 
place. 1  him  on  bo;ird  ii,  vi'ssel  and  cairied  him  to  Ifonolulu.  and  at 
that  port  liansferre  1  him  to  anotlier  vessel  which  carrie.l  him  to  !Jan 
Francisco,  California,   where  he  was  iirresteil  on  a  re|uisitioa  from 

a  I  broiu'at  to  t!iis  state  for  trial.     Tlio 


tl 


le  irovi'rnor  ol 


tl 


lis  slat; 


court   below  siHlaine  1  a  de;imrrer  t()  tliis  |)Iea.     Held,  tliat  the  do- 


luu 


•rer  w.is  projjcrly  suslaiae.l.     Kcr  v.  Tlie  Peo;>!e, 


211 


4.  Os  iu:gi"isiTi(iN,   uiaHM.AiMrv  ov  auu^wt    not  oim'.n   to  question. — 


W! 


:>   I 


lerson   cliai 


'  1  with  (a'ime  in  this  stat; 


arreste  1  in  a 


Bister  •Stat  ■  an  1  bran.^lit  here  for  trial,  on  a  re  niisition  of  the  ;;overnor 
of  this  state,  it  was  licld  that  our  courts,  on  tli  ■  trial  o'i  such  fugitive, 
would  not  in(|uiri'  into  t'le  re,j;ularity  of  his  arrest  ;ind  surn-nder  in  such 
sister  state,  an  1  tint  it  di  I  n  )t  m  itt  a-  if  he  ha  1  bv-n  illej;  lUy  arrestJ.l 


111  a  Corel 


111  country  and  broicdit  forcibly  ta  sueli  sister  stati 


Id. 


r».  FiTfirnvi'.  I'uoM  .nsririo  —  Ij/Ujamty  of  aukest  not  a  qukstiox  for 
Till",  cornTs. —  Wilt  re  le,^a!  steps  have  been  talcen  for  theaiiprehension 
and  return  tothis  country  of  a  fu,.;itive  from  Justice,  and  he  is  brou'^ht 
bacli  to  tile  United  Slates,  where  he  is  arrest(>d  on  a  requisition  of  tlio 
exetaitive  of  this  state  and  liroir^^ht  here  for  trial,  the  fact  that  he  may 
lia\"  been  ille;,;ally  arreste  1  in  such  foreisu  country  and  ltrou'-;lit  to  the 
Unii  '1  Stales  does  not  deprive  the  courts  of  this  state  of  jurisdiction 
to  tr.>  him  for  any  olfense  cliarj;ed  :i;:;aiiist  him,  the  state  not  beinsj;  a 
party  lo  su;di  illegal  arrest  and  abduetion.  Id. 

C.  LKIIAUTY  of  AHllKST  OF  A  Fl'UrnVI';  FROM  .Il'STIC'K  IN  A  FOllKION  CO'JN- 
TUY    NOT   NK(  KSSAUY    To   (IIVK  ((HIIT   .IlIJISniCTlON. —  The  lulc  Sit  COIU- 

nion  law  is,  that  the  court  trvin,^  a  party  for  crime  committed  within 
>t  invent ii;at(.'  the  manner  of  his  capture  in  a  for- 


its  Juris  liction  wi 

ei^^n  state  or  country,  thou  ;li  his  ca;)tiire  and  return  may  have  beei 


jilaiiily  without  a' •liority  of  law, 
7.  Right  of  asym'm  to  flumtivk  fi;om  .h  stic 


Id. 

A  fuj:;ilive  from  Jus- 


tice hiu  no  asylum  in  a  forci'^n  country  when  he  is  guilty  of  an  t>lfen.ie 


630 


AMERICAN  CRIMINAL  REPORTS. 


for  whioli  lio  is  liabln  or  subject  to  extradition,  by  treaty  between  thin 
ariil  the  forci;;!!  t;ovevmneni.  If  he  is  ille^allv  and  forcibly  removed 
from  sueli  fori'l^n  country,  that  country  ulono  has  cause  of  comphiint, 
and  ho  cannot  comphiin  for  it.  Id, 

8.  ExTRAnrnoN  of  FUdrnvES  depends  on  treaty. —  Where  no  treaty 

exists  Itetwccn  two  governments  for  tiie  extradition  of  criminals  ttei'in;^ 
from  justice,  there  is  no  obligation  existing  that  can  bo  insisted  upon 
to  surnniler  them  for  trial  to  the  government  from  which  they  havo 
tied;  but  as  a  matter  of  comity  between  friendly  nations,  yreat  olfend- 
ers  are  usually  sin-rendered  on  request  of  the  government  claiming  tho 
right  to  punisli  them.  Id, 

9.  FUCJITIVE,    WHEN    EXTRADITED,    MUST    BE    TRIED  ONLY    FOR  TIIE  CRIMES 

NAMED  IN  TREATY. —  Where  u  fugitive  from  justice  has  been  brought 
back  to  the  country  from  which  he  has  lied,  dh  a  warraut  of  extradi- 
tion in  conformity  with  tiie  terms  of  a  treaty  existing  between  two 
governmeats,  he  cannot  be  iirocceded  against  or  tried  for  any  other 
otfeiisi's  than  those  mentioned  in  the  treaty,  and  for  which  he  wa.s  ex- 
tradited, without  lirst  btung  atfordeil  an  opportunity  of  returning. 
But  tills  doctrine  has  no  ap|)lication  where  tlie  tu,^itive  has  been 
brought  back  forcibly,  antl  not  under  the  terms  of  the  treaty,  or  under 
an  extradition  warrant.  Id, 

10.  The  COURT  has  no  po\vi:r  to  reviiow  decision  of  maoistrate  on 
GROUND  IT  IS  AOAINST  WEiOHT  OF  EviDiCNCE. —  Upon  an  apjilication  for 
a  hiihcan  corpKs  in  the  case  of  a  fu_citive  criminal  comnntted  Ity  a  \k>- 
lice  magistrate,  under  the  extradition  act,  the  court  has  no  power 
to  review  the  decision  of  the  magistrate  on  tlie  ground  that  it  wa.S 
against  tlu;  weiglit  of  tlie  evidence  laid  bet'nn,'  him,  there  l)eing  sulli- 
cient  evidence  before  him  to  give  him  jurisdiction  in  the  mattiir,  Tlie 
Qticeii,  V.  Muiircr,  OaS 

FALSE  PRETENSES. 

1.  False  puktexse  — Promise  to  perform  some  act  in  the  future. — 

A  false  pri'ti'use,  to  be  within  the  statute,  nmst  be  the  assertion  of  an 
existing  fact,  not  a  promise  to  perform  some  act  in  the  future.  Coin., 
V.  Ahiove,  230 

2.  Indictment. —  The  jiarticular  act  alleged  in  the  indictment  was  the  pro- 

curing of  tile  pi'osecutors  indorsement  of  the  del'endaul's  )>ri>missory 
noti\  and  the  false  pretense  charged  consistecl  \n  the  dele-nlaiit  repre- 
senting to  the  ))roserutur  tliat  he  would  use  tht;  note  soir»t)rsed  to  take 
11])  anil  cano-1  aimtlier  note  of  the  same  amount  then  abi  iit  maturing, 
and  ui)on  which  the  |)rose<-iilor  was  liable  as  indorser,  and  for  no  other 
purpose,  and  the  indictment  charged  that  tiie  defend mt.  instead  of 
using  it  for  this  purpose,  as  he  pretended  he  would,  used  the  same  for 
liisown  private  jan'i)ose.  Ilclil.  that  the  indictment  did  not  set  out  an 
indictabh;  false  pretense  under  the  statute.  Id, 

8.  Constructive  larceny. —  Bv  jiroviso  of  section  111  of  the  act  of  ]\Iarch 
31.  IHliOd'.  L.,41(t.  Pennsylvania),  it  is  provided  "that  if,  upon  the  trial 
of  any  p.Tsoii  indicted  for  such  a  misdemeanor  (false  pretenses),  it  shall 
bejiroved  that  he  obtained  tlu'  iiroperty  in  (luestion  in  such  manner  as 
to  amount  in  law  to  larceny,  he  shall  not,  by  reason  thereof,  be  entitled 
to  be  aiMpiitted  of  such  misdemeanor,"'  etc.  IJcltl,  tiiat  the  distinc- 
tion between  the  offenses  of  constructive  larceny  and  cheating  by  I'also 
pretenses  is  clearly  delined,  and  as  neither  of  the  counts  in  the  indict- 
ment would  sustain  a  charge  of  larceny,  the  defendant  could  not  lio 
convicted  of  that  olFense.  Id, 

4.  An  indictment  for  obtaining  goods  under  false  pretenses  can  bo  main- 
tained against  oni;  who  sells  and  conveys  land  for  a  price,  by  falsely 
rejiresenting  it  to  be  free  from  incumbi-anees  and  the  title  thereto  i)er- 
fect.  when  the  land  is  in  fact  incumbered  with  a  mortgage  known  to 
the  defendant.    State  v.  Miniduy,  2;)4 


INDEX. 


n;]7 


^on  tin's 
oniovod 
iipliiint, 
Id. 

tri'fity 
<  rtwiiig 

■y  liiivo 
olFc'i  id- 
ling tho 
Id. 


ATE    ON 

tion  for 

)y  a  pi)- 

powor 

it  was 

ly  blllli- 

)r.    The 
f.«8 


5.  Venur  — Pr,ACR  OP  tiual.— TI.  wrnto  and  posted  at  N..  In  England,  a 
k'tter  addressi'd  to  (}.,  at  a  |>laco  out  of  England,  rontninin<;  a  falf-e 
pri'tonse,  by  means  of  wliicli  he  frandulciitlv  iiidurod  (J.  to  transmit 
to  N.  a  flraft  for  150/.,  wliirli  lie  there  oaslied.  Hfld,  tlint  there 
Wius  jurisdiction  to  try  II,  at  N. ;  tiiat  tlie  j)relei)se  was  made  at  N., 
where  also  the  money  obtained  by  means  of  it  wjia  received.  Tlie 
Qiteen  i\  Holmes,  691 

FINE  AND  IMPRISONMENT. 

1.  Fine  and  impihsonment  — Costs  — Jl'D(Iment  for.— Relator  was  con- 

victc:l  of  an  ass;iult.  The  court  iinijused  a  fine  of  !?5()0.  taxn  1  the  costs 
at  s:{()().5(),  and  ordered  njlator  tol)e  imprisoned,  as  by  statute  provided, 
for  tlic  lino.  Held,  that  section  4(i  of  the  a<'t  coneenung  cnmes  and 
Iiunishment  (1  Comp.  L.,  ;.';i.V.>)  autb(n-ized  tla;  imposition  of  the  fine, 
and  section  074  of  the  criminal  practice  art  (id.,  221)9)  authorized  the 
judgment  for  costs.    Staie  of  \efuda  v.  District  Court,  236 

2.  JUDfiMENT  —  IIow  ENFOiHEi).— Relator  could  be  imprisoned  for  the  fine. 

TJie  judgment  for  costs  can  be  enforced  only  by  e.vecution.  Id. 

8.  Alternative  i'unisiimext  — Fine  or  imprisonment,  or  both. —  When 
a  statute  jmivides  an  alternative  jainishment  for  an  olfense,  and  further 
provides  that  the  Jury,  in  rendering  a  verdict  of  guilty,  shall  "  fix  the 
degree  of  punishment  to  be  inflicted,  itidcss  tlie  mime  be  Jixed  by  law," 
tho  jury  nmst  be  instructed  and  recjuired  to  lix  the  kind  and  extent  of 
the  punishment  within  the  limits  prescribed  by  the  law.  Herron  v. 
The  Com.,  238 

4.  General  verdict  of  guilty. —  It  Avas  error  for  the  court  to  receive  a 
general  verdict  of  "  guilty  as  charged  in  the  indictment,"  and  assess  a 
fine  thereou.  Id. 

FORGERY. 

1.  Scienter  must  be  alleoed. — An  indictment  alleging,  in  words  of  the 

statute,  that  the  defendant  feloniously,  and  with  intent  to  defraud,  did 
pa.ss,  utler  and  publish  a  falsely  made,  fo'';;i-ii,  counterfeited  and  altered 
obligjitif)nof  the  United  States,  nmst  further  allege  that  the  defendant 
knew  it  to  be  false,  forged,  counterfeited  and  altered,  or  it  is  insuffi- 
cient, even  after  verdict.     United  States  v.  Carll,  240 

2.  The  existence  of  a  foreign  incorporation  may  be  shown  by  indi- 

rect EVIDENCE. —  U|)on  the  trial  of  an  indictment,  charging  forgery 
in  the  second  degree,  in  the  making  and  engraving  of  a  plate  in  the 
form  and  similitude  of  a  note;  of  a  bank  incor[Kwate(l  in  Havana,  under 
the  laws  of  Spain,  a  witness  on  behalf  of  the  prosecution  testified  that 
he  had  been  at  the  bank  in  Hav;..ia  ami  saw  business  carried  cm  there; 
that  the  bank  issued  notes  which  were  received  as  money;  that  he  saw 
the  articles  of  a.ssociation.  and  from  them,  and  what  he  saw  in  a  new»- 
paper,  the  ollicial  organ  of  the  government,  he  believed  the  bank  was 
incorporated  under  the  laws  of  Si>ain.  An  engraver,  connected  with 
the  American  Bank  Note  Company,  also  testified  that  he  engraved  the 
plates  from  which  the  genuine  notes  were  printed,  and  that  they  were 
then  in  the  vaults  of  that  com|)any.  Held,  that  tlu>  evidence  was  suf- 
ficient to  establish  the  legal  exi.steiice  of  the  bank.  The  People  V.  UAr- 
geueour,  240 

8.  The  indictment  chiU'ged  that  the  note  so  alleged  to  have  been  forged  was 
"  for  the  i>ayment  of  iifty  eeiitaro.s.'''  Held,  that  it  was  not  necessary 
to  ileline  the  meaning  of  the  wonl  eeiduvos.  Id. 

4.  Under  the  statute  defining  forgery  in  the  second  degree,  the  making  and 

engraving  of  an  ludinishcd  plate  constitute  the  olfense.  Id. 

5.  Want  of  aitiiouity  of  defendant  to  make  the  plate. —  Testimony 

that  thegeiuiine  plates  of  tho  bank  were  engraved  and  retained  by  the 


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038  AMERICAN  CRIJIINAL  IlL:i't>liTS. 

Bank  Noto  Cumpnny.  with  the  tt';.timony  of  tho  ii';cnt  of  Iho  l::ii»k  in 
tliis  country  tt'.nt  .10  on(\  ox<  o\.t  sai<l  t  (iiiipnny,  had  been  aulhdrizcd  to 
do  any  ('!i'j;raA'iiig  for  tlic  hank,  was  siillificiit  to  cstalilii^li  j-ir//utf  fitcia 
that  the  dcrciidant  was  not  authorlzui  to  mako  llio  phiti'.  Id. 

0.  Not  nec'e  wauy  to  ATj-r,aE  intkxt  to  D'lFr. aud. —  As  the  ofTciif.o  chavfjed 
was  coniiMittod  hoforo  tlio  l\'Ui\l  C'odc  wi'Ut  into  cfu'ct,  it  was  not  essen- 
tial to  cIiarp;o  in  tlio  iudiitnioiit  an  iiitont  on  Iho  jiart  of  doloadant  to 
defraud  sinne  individual  or  corporation.  Id. 

7.  Waive::. —  As;;uniin;v  tliat  tlio  ])rovisio!^n  of  tlio  Penal  Code,  ('efinin}? 

for/^ery  in  the  second  (h>;;Tee,  were  ai);ili(:ihk',  as  tlie  Code  of  Criiniiial 
Procedure  re;(uires  such  <iut  stion  to  be  raiso  I  l)y  niei  'on  h(;fori!  or  iit  t  lio 
time  defendant  was  called  for  Ju  Iitment,  hy  failiii;.;  so  to  jireient  it  tho 
ri;^ht  to  object  was  waived,  and  del'eai'.ar.t  could  net  avail  hiniLiilf  of  it 
upon  upijoal.  Id. 

8.  Brevity  and  u:cn'r.TAiNTY  01^  Foi:n:'n  ixst;:ument  no  rau  to  convic- 

tion.—  For  fort^inj;  an  instrur.iejit  in  tiiei^(^  tonus :  "  (!(» )rfre,  let  the  b(  y 
have  !?2  worth  of  wliat  he  wants,"  an  indi<  t  meat  will  li(>;  the  other  con- 
etituents  of  for,i;erv  concuriinj;,  th(»  brevity  and  uncertainty  of  this 
instrument  will  not  ju'cvent  a  conviction.  Such  ]a;i('r  was  not  inad- 
miuaible  iu  evidence  on  .account  of  unceilaiiily.    Bnr.'.c  v.  Tie  btnlr, 

679 


FORMER  ACQUITTAL,  ETC. 

Sco  AcTrir:Fo:3  Acquit  — Autrefois  Convut.    Jziopahdy.   Jueisdiction. 

Lauleny,  8-1!:. 

FORNICATION. 

A  conviction  for,  may  Lc  Buataiuod  under  an  indictment  fcr  ecduction. 
Ui(M  V.  Com.,  .  GG:) 

FRAUDULENT  PACKIITG  OF  COTTON. 

Not  NrcERSAUY  TO  SHOW  conct^ai.mi^nt  ov  si:n?;TANCE  mixed  ■mTiT  the 
COITON. —  A  [)cnal  statute,  which  provide)  tliat  "a.iy  person  wl  o 
fnuidulently  packs  or  bales  any  c<  Iton  by  platinij,  or  otherwise,"  is  vio- 
lateil  when  persons,  who  j:;in  cotton  for  toll,  witli  intent  to  delraud  the 
owner  or  the  imrchaser  thereof,  mix  sand  ur  other  sui)stanc(>s  with  tho 
cotton;  nor  is  it  necessary  to  slmw  a  concealment  of  the  sand  or  other 
bubi-tances  in  order  to  ni;d;o  out  the  ofu'iiKo.    Uuiiid  ct  ul.  v.  tStutc,  !J17 

8co  Indictment,  0  and  7. 


OAMINO. 


1.  Oamino  —  NAViOAr.T.E  STREAM  NOT  A  iiioiiwAY. —  A  navif^ahlc  rtrcam  IS 
not  a  /t?V///(Crtv  within  the  meaning  of  the  statute  against  gannny  (Code 
of  Alubiuna,  sec.  -i'M::).    DicWi/  v.  The  .SUilv,  121t» 


8.  JunisDK'TtoN  OVER  NAViciAiu.E  STREAM. —  The  I'lavinR  liaviuR  been  !'n 
the  middle  of  the  river  dixiiliii;;  two  counties.  1  he  coiutj  of  either  couni  y 
hail  jurisdiction  of  the  olfense  under  the  statutea.  id. 


INDEX. 


G30 


G^tAND  JUR0R3. 

I?:TOXTr.\TiO!J  or"  cnANn  JCRon.— An  iiuliclincnt  will  not  Ic  abatod  or 
quiisluul  Iccauso  one  or  nioro  of  the  yrnnd  jury  wore  intoxicated  wliilo 
it  was  under  consideration.    Allen  f.  The  l^tate,  253 

S.VM3  —  C  )NriiOL  OJ"  CTJKT  ov;;;^ —  A  Rranl  jurjr  in  not  under  the  con- 
trol of  the  court,  like  a  petit  jury  is,  wliile  considering  of  its  verdict, 
and  sliould  not  be  so  judged.  Id, 

A  grand  juror  cannot  be  comjielled  to  disclose  liow  lie  or  any  other  juror 
vtited  ujon  an  indii^tnicnl,  but  le  may  Ic  re<juircd  to  give  the  te^t!- 
mouy  of  a  particular  witness.    Ex  iniite  Sontci'j,  5:23 


HABEAS  CORPUO. 

1,  Uahcait  corpva  lies  v.here  the  jctitioner  is  confined  tinder  the  judgmoTit 

ol  a  court  eutereil  when  such  court  had  no  juris.liction.  Gcirccifn 
Vase,  2.>4 

2.  Samk  —  Veudict  —  JurxniKNT  — T!r:TniAT., —  A  verdict  is  the  b.^si;',  of  V.\o 

judgment,  a-d  when  the  hitter  is  reverted  because  the  law  uoes  net 
autliorize  tl  f.,ruu'r,  both  are  kI  aside  and  areuf  no  ellVtt;  ,|iiilgnicnfc 
for  murder  Ijcing  reverseil  an<l  tlii'  (au.se  remajided  for  lurther  \  n  i  I'cd- 
ings,  the  <■<  int  (  annot,  tijon  Mich  verdict  fcr  murder,  enter  jtidgment 
for  niaiisla»ighter  without  a  retrial  of  the  cause.  One  so  conviete  I  may 
be  released  from  the  i)eniteatiary  on  habeas  corpus,  ttad  remanded  to 
the  cujto.ly  of  the  sherilf  to  aw.iit  trial.  Id, 

8.  Power  of  Fnor.RAL  couiitr  — Statu  ciuminal  statute.— The  circuit 
court  of  iIm!  United  States  may  issue  tiie  writ  of  habeas  corpus  upon 
tlu?  a|>plication  of  any  j.erson  who  is  imjirisoned  in  violation  of  tho 
constitution,  or  of  any  law  or  tre;ity  of  the  United  States;  and  if  a 
person  b(>  imprisoncul  under  a  state  statute  which  is  ia  coullict  with 
either,  that  court  haj  power  to  discharge  him.     In  reDi'usiiahaii,Ji:.  iO 

4.  JuiusnicTio.v. —  The  federal  courts  have  no  jurisdiction  to  discharge  a 
prisoner  held  under  a  state  statute,  n\)im  the  ground  that  such  staluto 
IS  in  violation  of  the  constitution  of  the  state,  or  in  excess  of  the  ])ow- 
crs  which  the  people  of  tiie  sl;\tt'  have  conferred  on  th(>ir  legisl.iture. 
If  it  <loes  not  violate  the  federal  constitution,  tho  question  is  for  tho 
state  courts.  Id. 

C.  Ukviewin!}  ro'.VEii  oy  Tiin  sui'U"/ii3  cdviit  07  t:ie  Uxiteo  State?  in 
ucinunal  case,  on  a  writ  of  halieas  eoi'iiiis,  is  restricted  to  the  consid- 
eration and  determination'  of  the  ([pestion  whether  the  court  which 
pa.ssi'd  seiitenct!  upon  the  prisoner  hai!  jurisdiction  to  try  hii;i  tor  tho 
oil'ense  I'orwliich  he  was  indicted  and  to]  ass  sentence  of  imi)risonine!it 
upon  him.  There  is  no  geiuu-al  jiowcr  vested  iu  the  su|)reiiie  court 
to  review  the  judgments  of  the  iid'i  rior  courts  of  tlie  United  Stiites  in 
criniinal  cases,  whether  bv  tho  use  of  the  writ  of  ha'was  cuipiis  or 
otherwise.    Ex  parte  Wilson,  Cyj 

0.  Where  a  party  is  held  under  ])roce.->s  issued  upon  anv  final  judgment  of  a 
court  of  competent  jurisdiction,  the  iiuiuiry  in  litihcas  eor/nis  is  liiiiited 
to  the  validity  of  the  judgment,  or  to  llie  ipiestion  whether  it  is  stayed 
or  lijus  spent  its  force;  mere  irregularities  will  not  justify  a  discharge. 
In  re  nolfs,  440 

7.  The  c:>uut  iia;  no  powkti  to  u'Iview  P/Ionion  o7  maotstuath  on 
OKOUNU  IT  IS  AGAINST  WEIGHT  (>/  E.vii)i:NCE.— Upon  an  a^»i)hcation 
for  a  liabeas  corpus  in  the  case  of  a  fugitive  criminal  committiHl  by  a 
police  magistrate,  uniler  the  extradition  act,  the  court  has  no  |)ower  to 
review  tin;  decision  of  the  magistrate  on  the  ground  that  it  was  against 
the  weight  of  tluM'videniv  laid  before  him,  there  being  iulllcient  evi- 
denie  before  him  to  give  him  jurisdiction  in  the  tuuttcr.  The  Queen  v. 
Maurer,  583 


640 


AMERICAN  CRIMINAL  REPORTS. 


HUSBAND  AND  WIFE. 
See  Arson,  3.    Bigamy,  2.    Evidence,  14, 15,  51.    Larceny,  17. 

IMPRISONMENT. 

Imprisonment  for  fine  and  cost. —  In  all  our  penal  legislation  the  word 
"  imjjiisonment "  means  iuiprisoninent  in  the  county  jail  or  local  i)rison, 
unless  expressed  to  be  in  the  penitentiary;  and  the  statutes  providing 
for  the  imprisonment  of  a  defendant  until  tlie  fine  and  costs  be  paid 
refer  to  misdemeanors  and  not  to  felonies;  and  a  defendant  convicted 
of  a  felony  and  sentenced  to  the  penitentiary  for  a  tixetl  term,  and  the 
payment  of  a  fine  and  costy,  cannot  be  continued  in  jirison  after  tlia 
expiration  of  sjiid  term  by  reason  of  the  non-payment  of  the  fine  and 
costs,  either  iu  the  penitentiary  or  county  jail.    Cheaney  v.  The  State, 

2H 

See  Sentence,  3. 

INCEST. 

A  brother-in-law  and  sister-in-law  are  nearer  of  kin  by  affinity  than  cous- 
ins, witliin  tlie  meaning  of  tlie  statute  prescribing  the  punishment  of 
incest.    Steivart  v.  The  State,  271 


INDECENT  EXPOSURE. 

1.  The  crime  of  indecent  exiM)sure  is  committed  if  a  person  intentionally 

makes  such  exposure  in  tlie  view  of  the  windows  of  two  neigliboriiig 
dwelling-houses.     Van  Houten  v.  State,  '212 

2,  It  is  not  necessary  that  any  person  sliould  actually  see  such  exjiosme.  if 

it  was  made  in  a  public!  place  witli  the  intent  that  it  sliould  be  seen,  and 
persons  were  there  who  could  have  seen  if  they  had  looked.  Id. 

INDECENT  LETTER  TO  FEMALE. 

An  averment  in  an  indictment  that  the  defendant  "unlawfully,  wilfully 
and  wantonly  sent "  an  indecent  letter  to  a  fem.ale  is  not  suHicieMl  to 
show  an  offense  under  a  statute  whi<li  makes  it  a  misdemeanor  '  wil- 
fully and  wantonly"  to  send  such  a  letter  to  a  female,  without  lawful 
purpose  in  sending  the  same.     State  v.  Smith,  275 

INDICTMENT. 


that  the  offense  may  judicially  aj)|>ear  to  the  court, 
to  charge  a  conclusion  of  law.    Slate  v.  Graham, 


1.  Must  alleoe  the  facts,  not  a  conclusion  op  law.— An  indictment 
must  allege  the  sjiecial  matter  of  the  whole  fact  with  such  certaiiity 

It  is  not  sulliciiiit 
376 

2.  ClIAUOINO   OFFENWK   IN   LAXOUAOE  OF  TUF.  STATUTE.— It   is  fillfricieilt.  ilS 

a  general  rule,  to  charge  a  statutory  offense  in  the  words  of  the  stat- 
ute; I'lit  when  a  more  jiarticular  .statement  of  the  facts  is  necessary  to 
soi.  it  forth  with  recjuisite  certainty,  they  must  be  averred.  I<1, 

8.  An  indictment  for  st'Uing  Ii(|u<)r  within  three  miles  of  Evening  Shade 
College  must  aver  that  tlie  sale  was  not  for  medii-al  purposes  by  a  reg- 
ular jaacticing  |)hysi(iaii,  who  had  made  and  recorded  the  afhdavit 
required  by  the  act.     State  v.  Scarlett,  278 

4.  Not  indorskd  true  mix. —  An  indictment  will  not  lie  qnaHhed  on  the 
ground  of  its  not  being  indorsed  as  a  "true  bill,"  or  signed  by  the  fore- 
man of  the  grauil  jury.     .S7(r/f'  r.  Ma;/nith,  279 

6.  Referkino  to  tiiikd  I'KitsoN  AS  UNKNOWN.— At  common  law.  incases 
where  an  indictment  ri'iVrred  to  third  parties  as  jiersoiis  to  the  grand 
jury  unknown,  if,  upon  the  trial,  it  was  uuwle  to  appear  that  the  grand 


lilMiiiMtt 


INDEX. 


C41 


iiirj'diil  know  the  names  of  the  persons  referred  to.  the  accused  would 
liavo  to  be  ac(iuitted  on  the  ground  of  a  variance  between  the  allega- 
tions of  the  indictment  and  tlie  proofs.  But  it  was  not  necessary  for 
the  state  to  i)rov(!  the  truth  of  the  allegation  beyond  a  reasonable 
doubt.     Onlhrie  v.  The  State,  78 

6.  Gfnekic  ou  technical  terms— "Words  generally  understood  amono 

THE  PEOPLE. —  Wliere  a  statute  creating  an  offense  declares  tlu.t  it 
may  be  coirniitted  l)y  certain  specified  acts  or  means,  "or  otherwise," 
the  acts  "  otlierwise"  or  different  from  those  specified  must  be  alle;j;ed 
in  siicli  a  manner  as  to  enable  the  court  to  determine  from  the  inilict- 
ment  whether  or  not  they  constitute  an  offense.   Daniel  et  al.  v.  State, 

247 

7.  Same. —  In  alleging  the  acts  assumed  to  be  criminal,  they  should  be  set 

forth  in  unainl)iguous  words,  understood  oy  court  and  jiiry  and  by  the 
people  generally;  not  in  slang  words  or  •u  garisms,  or  words  use(l  in  a 
technical  sense  in  some  i)articular  employment  or  biisiness,  but  in 
words  belonging  to  the  plain  and  proper  language  of  the  community. 

I'd. 

8.  Wilful,  deliberate  and  premeditated  —  Malice  aforetiiouijiit. — 

In  reviewing  an  indictment  for  murder,  held,  that  charging  the 
homicide  to  have  been  with  "malice  aforethought"  is  tantamount 
to  an  averment  that  the  act  was  "  wilful,  deliberate  and  premeditated." 
State  V.  Iling,  375 

0.  MriinER  —  Statutory  form — Deliberately,  etc.— An  indictment 
cbarging  murder,  in  the  lang'tage  of  sec.  45  (New  Jersey)  of  the 
criminal  ])r(K'edure  act,  is  constitutional  and  legal,  and  sufficiently 
sots  forth  the  nature  and  cause  of  tlie  accusation  without  the  use  of 
the  word.s  with  "deliberation  and  premeditation."  Graves  v.  The 
State,  380 

10.  What  it  must  show. —  Although  the  Alabama  statute  has  dispensed 

with  many  of  the  allegatitms  essential  to  an  indictment  for  ])er,)ury 
at  common  law,  it  is  still  neci^ssary,  in  addition  to  the  general  aver- 
iiiciit  of  aufhority  in  the  court  or  officer  to  administer  the  oath, 
to  set  forth  tlie  substance  of  the  proceedin.'^s,  that  it  may  distinctly  aj)- 
pear  the  ojitii  was  not  extra-judicial,  that  it  was  taken  on  an  occa- 
sion, in  reference  to  a  fact  material,  and  before  a  court  or  officer 
liaving  ])ower  to  adminisfer  it.  An  indictment  which  does  not  set 
forth  enough  of  the  proceedings  to  disclose  these  facts  is  insufficient 
under  tlu;  statute.     Jacul}s  c.  State,  405 

11.  Misnomer- Names  of  parties  to  proceedings  in  which  the  false 

oath  was  taken. —  The  names  of  the  j)arties  to  the  imjceedings  in 
which  the  false  oath  was  alleged  to  have  been  taken  ai-e  essential  to 
its  identity,  and,  if  incorrectly  stated,  the  variance  is  fatal  to  the  prose- 
cuti<m.  Id. 

12.  Descriition  of  the  stolen  property. — Where  in  an  indictment  the 

stolen  jn-ojierty  is  described  as  "  sundry  bank-bi!'/-,  issued  on  the  au- 
tliority  of  the  United  States,  usually  known  as  '  greenbacks,'  amounting 
in  all  to  tlie  sum  of  $589,"  such  description  is  not  sutlicient  to  supjjort 
the  indictaient,  or  enable  the  jury  to<letermine  that  the  stolen  chattels 
are  the  siune  as  referred  to  in  the  indictment.  Tiie  immber,  kind  and 
denomination  of  the  bills  ought  to  be  given,  or  a  good  and  sufficient 
excuse  for  not  doing  so  set  forth  in  tlie  indictment.  Teviitory  v. 
Shijtley,  4U1 

Less  offense  included  in  greater,  Ganjs  Case,  354. 

Abortion,  2.  Hioamy,  indictment  in  language  of  statute,  1.  Bribery,  not 
bad  for  uncertainty,  1,  2.  BrimLAiiY,  n<»t  bad  for  duplicity,  5.  Cor- 
ruption in  Office,  1,  3,  3.  Embezzlement,  10.  For<ierv,  1,  3.  In- 
decent liETTER  to  Female.  Infamous  Crime.  Lost  indictment,  see 
Practice.  5.  Placing  names  of  additional  witnesses  on,  see  Practice, 
1,  2,  3.    Copy  of  indictment  and  list  of  jurors,  see  Practice,  18.    Ke- 

SISTINU  AN  OFFICEK. 

Vol.  IV— 41 


642 


AMERICAN  CRDIINAL  REPORTS. 


mm-r 


^■■■.r 


INFAMOUS  CRIME. 

1.  Information  or  indictment.— The  provision  of  the  Revised  Rtatutoa  of 
the  United  States  authorizing  certain  offenses  to  be  prosecutod  l)y  in- 
dictment or  by  information,  does  not  prechide  the  prosecution,  by  infor- 
mation, of  other  offenses  of  such  a  grmle  as  may  1h3  so  prosecuted 
consistently  with  the  constitution  and  laws  of  the  United  States.  Ex 
parte  Wilson,  283 

3.  Record  of  conviction.— ITie  omission  of  the  record  to  state  that  there 

was  no  suitable  penitentiary  within  the  state  is  no  ground  for  discharR- 
ing  the  prisoner  on  habeas  corpus.  Id. 

8.  Same. — A  certified  copy  of  the  record  of  conviction,  if  valid  upon  its 
face,  is  sufficient  to  authorize  the  keeper  of  the  prison  to  hold  the  pris- 
oner without  any  waiTant  or  mittimus.  Id. 

4.  Infamous  crime. — A  crime  punishable  by  imprisonment  for  a  term  of 

years  at  hard  lalxir  is  an  infamous  crime  withm  tlie  meaning  of  tlie  fifth 
amendment  to  tlie  constitution,  and  a  person  sentenced  to  such  inipris- 
onme-.it  without  having  been  ])resented  or  indicted  by  a  grand  jury  is 
entitled  to  bo  discharged  on  habeas  corpus.  Id. 

INFANTS. 

1.  Infants  under  eiohteen  years. —  The  Revised  Statutes  of  ^rissonri, 

wliidi  exemi)ts  infants  under  eigliteen  years,  who  commit  crime,  from 
imprisonment  in  the  ])enitentiary,  does  not  exempt  them  from  tlte 
dciith  penalty.     The  State  v.  Adtiins,  'YJi 

2.  Between  the  ages  of  seven  and  fourteen  years,  the  law  presunu>s  an  in- 

fant incajiable  of  committing  crime,  and  the  onus  is  on  the  state  to 
overcome  tliis  presuuiiition,  wliicii  the  law  supplies,  by  siitisfactoiy  evi- 
dence. Id. 

INFORMATION. 

1.  An  information  is  fatally  defective  which  omits  to  allege  that  the  olTcnso 

was  committed  anterior  to  the  day  of  the  filing  thereof,  wlien  tlu<  stjit- 
r.le  rtM|uires  that  the  time  of  the  commission  of  the  olfense  should  lie 
so  stated.     Williams  v.  The  State,  2[*2 

2.  WJU'u  the  irs'ition  of  an  unn('<'essary  word  in  an  .  fomintion  does  not 

tend  to  the  prejudice  of  the  defendant,  and  does  not  prejudice  tlie  in- 
formation or  tiie  description  of  the  olfense,  it  sliouhi  lie  disreganlcil. 
People  V.  Flores,  485 

Placing  names  of  additional  witnesses  on,  see  Practice,  1,  2,  3. 

INQUE.ST. 

DESTRO'iayq  DEAD  DODY  TO  PUKVENT  HOLDINO  OF  INQUEST  THEREON.— It 
is  a  misdemeanor  to  burn  or  otherwise  dispose  of  a  dcatl  ImmIv  with  in- 
tent thereby  to  prevent  th(!  holding  upon  such  body  of  an  iiitciidtil 
coroner's  inquest,  and  so  to  olstruct  a  coroner  in  tlie  execution  of  liis 
duty,  in  a  ca.se  where  ihe  incpiest  is  one  which  the  coroner  \\i\s  jnrisdic- 
tioii  t  >  hold.  A  coroner  luis  jurisdiction  to  hold,  and  is  jiistitied  in 
holding,  an  inquest,  if  he  honestly  iR-Iieves  information  which  hn-i  Ih'i'u 
given  to  him  to  l)e  true,  which,  if  true,  wouUlmalio  it  his  duty  to  hold 
such  inquest.    27ie  (^ueen  r.  Stephenson  et  al.,  5U!{ 

INSANITY. 

1.  Insanity  as  a  defense  — The  test  of  responsibiuty. —  Where  reason 
and  judgment  are  not  overcome,  but  the  person  ihaiged  with  <  rime  at 
the  time  retains  tlu'  jiower  to  cIkmisc  between  right  and  wniiig  as  to 
the  particular  act  tloiie,  lie  cannot  escape  responsibility  for  his  acts 
under  tlie  idea  of  insanity.     Dunn  i:  The  People,  0~ 


INDEX. 


G43 


2.  So  if,  nt  the  time  a  deadly  asaault  is  made,  the  person  making  the  as- 
sault knew  that  it  was  wrong  to  commit  sucli  an  act,  and  liad  tlie 
iiower  of  mind  to  choose  eitlier  to  do  or  not  to  do,  and  of  controlling 
his  conduct,  in  accordance  with  such  choice,  he  will  be  held  amenable 
to  the  law,  although  he  was  not  entirely  and  perfectly  sane.  Id. 

See  Upntone  v.  The  People,  895;  Graves  v.  State,  380. 

Murder,  intoxication  of  person  on  trial  for,  maj  be  shown,  8. 

uVs  to  insanity  produced  by  intoxication,  see  Murder,  9,  10,  11,  12,  13. 

INSTRUCTIONS. 

1.  Instruction  presextino  a  party's  theory.— On  the  trial  of  a  party  for 

cons)»iracy,  wlien  the  evidenie  upon  the  material  jjoints  in  the  case  is 
contliiting,  an  instruction  on  the  jiart  of  the  accused,  which  fairly  pre- 
sents the  law  of  the  case  on  the  theory  contended  for  by  him,  ou<;;lit 
not  to  lie  refused,  liaving  a  basis  in  the  evidence  on  wliicli  to  rest. 
Trask  v.  The  People,  2i)i{ 

2.  KiCASON'Anr.E  noUDT. —  In  every  crimiiial  case  the  defendant  is  entitled  to 

an  instruction  as  to  reasonalile  (Umbt:  and  it  is  error  for  the  court  to 
rcliise  it.  no  matter  how  clear  the  evidence  may  seem  against  him. 
.S7((/t>  V.  aonce,  (JS;  The  People  v.  Davis,  514 

3.  Di'.i'iNED. —  A  rea-..in:'ble  doubt,  as  used  in  instructions  in  crimin.al  trials, 

is  one  iirisiiig  from  a  candid  and  impartial  investigation  of  all  the  evi- 
dence, and  .'  uili  as  in  the  graver  transactions  of  life  would  cause  a 
rciisonable  ami  prudent  man  to  hesitate  and  pause.  Dunn  v.  The  Pcn- 
2>l(\  ori 

4.  Same  — Too  many  instructions.- On  a  trial  upon  an  indictment  for 

an  assault  with  intent  to  nuu'der,  tlie  court,  for  the  defense,  ^avo 
eleven  instructions  as  asked,  and  twelve  others  after  modifying  tliem, 
iiud  refused  twenty-three.  It  was  held  that  tiie  rules  of  law  applicable 
I  >  till-  case  weiH'  simple  and  i)l:iiM.  iim!  (liat  the  practice  of  incnmhiT- 
ing  the  record  with  so  many  instructions  was  a  vicious  one,  anil  it 
iiu,!;lit  not  to  be  enc(Uiraged.  Id. 

5.  Sami:  — In  the  language  of  the  statute.— On  a  criminal  trial  an 

ii.ht:  action  following  the  language  of  the  statute,  which  declares  tliat 
ilruiilvcnness  is  no  excuse  for  crime,  is  not  eiToneous.  Id, 

6.  If  any  part  of  a  single  instruction  ought  not  to  be  given,  the  action  of  the 

trial  court  in  rejecting  the  whole  will  always  be  afflrmed.  'The  People 
V.  Da  via,  514 

7.  As  TO  form  of  verdict  in  criminal  case  — As  ignoring  the  rkuit 

to  find  for  a  lesskr  offense  —  Duty  of  defense  to  ask  a  counter 
INSTUUCTION. —  All  instruction  given  for  the  people  on  the  trial  of  one 
lor  an  assault  with  intent  to  murder,  directing  the  jury  as  to  Use  lorm 
(if  their  verdict  in  case  of  conviction,  was  objected  to  as  error,  inas- 
nunh  as  the  direction  to  lix  the  term  the  defendant  sltould  serve  in 
the  penitentiary,  if  found  ;uilty,  ignoreil  the  right  of  the  jury  to  liiid 
liini  guilty  of  a  lesser  ollensi'.  Held,  that  while  not  concuri'iiig  in  siu'li 
vit'W,  if  it  were  correct  it  was  the  duty  of  counsel  for  the  defendant 
to  have  asked  an  instruction  that  the  jury  might  lind  a  verdict  f<a' 
an  assault  with  a  deadly  wea|)on,  etc.,  anil  n!)t  having  done  so,  they 
were  hi  no  position  to  complain.     Dunn  v.  The  People,  53 

8.  Giving  undue  prominence  to  particular  facts,  and  giving  im- 

proper CONSTRUCTION  TO  A  LETTER. —  Ou  the  li'ial  of  oiic  for  rect'iv- 
ing,  and  also  for  aitling  in  concealing,  stolen  ])roiierty,  an  instruction 
(lirecting  the  attt>iition  of  the  jury  to  a  |)articular  part  of  the  evidence, 
and  givuig  it  undue  imi)ortance,  and  which  also  gives  a  construction 
to  a  letter  of  the  defendant  not  warranted  by  any  correct  reading. 
ia  proiierly  refused.    Campbell  v.  The  People,  338 


I?'*':. 


G44 


AMERICAN  CRIMINAL  REPORTS. 


0.  Same  — SiioCLD  be  ArrucABLE  to  the  case.— AUIioukIi  an  instruc- 
tion contains  a  correct  principle  of  law,  yet  if  it  has  not  the  sli;j;lit('st 
application  to  tlie  facts  of  tlio  ca^jo,  ita  refusal  is  proper.  lil. 

10.  Op  a  reasonable  dol'BT. — On  the  trial  of  one  for  murder,  an  iiiKtmc- 

tion  for  the  defense  that  the  law  in  re}j;ard  to  rejusonable  douht  applies 
with  f?i'eater  force  to  circunwtantial  than  to  otlier  classes  of  evidence, 
is  erroneous,  and  properly  refused,    Adams  ct  al.  v.  The  I'voplc,      ;j.")l 

11.  It  is  error  in  an  instruction  for  the  defense  to  sny  that  if  the  <'ircnni- 

stances  are  cap.nble  of  l)einR  explained  on  a  theory  consistc  >t  with  the 
innocence  of  the  accused,  the  jury  should  accjuit.  A  theory  niinlit  lie 
assumed  that  the  testimony  as  to  his  ynilt  was  false,  and  on  such  a 
theory  there  could  be  an  explanation  of  the  circumstances  consistent 
with  his  innot.ence.  Jd. 

12.  And  herein,  of  the  policy  that  many  guilty  men  sHorr^n  escai-e 

rather  THAN  ONE  INNOl'ENT  PERSON  SHOULD  SUFFER.— Oil  the  triid  of 

two  persons  uixm  a  charge  of  murder,  the  <U'fen<lants  asketl  the  court 
to  instruct  the  jury  that  the  i)olicy  of  the  law  is.  that  it  is  better  that 
ninety  and  nine,  or  any  mnnber  of  Ruilty  persons,  should  i-scaiie.  than 
that  one  innocent  man  should  Ik?  convicted,  and  that  it  is  not  suliicicnt 
to  authorize  .a  conviction  that  the  >:n't">ter  weight  or  pre])on(lerau<('  (if 
evideiu-e  sup|M)rts  the  allegations  of  the  inrlictment,  which  the  court 
n  fused  to  Kive.  Held,  that  the  instruction  was  properly  ri  liiscl.  (luic 
iK'infj  no  policy  of  the  hiw  on  the  subject,  or  for  the  cousiderntiun  of 
the  jury;  that  it  is  not  within  the  puri)ose  of  the  law  that  any  .:;>iilty 
p»'rson  shouhl  escape  or  any  iuuoi'eut  one  b«>  convicti'd ;  and  that  il'  the 
f^reati'r  weight  or  i)re|i<>nilerance  of  the  evidence  Ik,"  such  as  to  satisfy 
the  jury,  iK'yond  a  rea.sonabie  doubt,  of  the  defendant's  guilt,  then  it 
would  1k!  suflicient  to  authorize  a  conviction.  /(/. 

12.   An  instruction  not  reduced  to  writing  must  refer  to  AUTHOniTY.— 

Where  a  statute  reijuires  instructions  to  be  rediui'd  to  writiii;^  lielore 
behi^c  given  by  the  .pulge  to  the  jury,  and  provides  that  such  iustruc- 
tions  shall  be  taken  as  jiart  of  the  record  and  deemed  subjectsof  a|i|ieal, 
tin?  jtidgo  cannot  give  an  instruction  not  reduced  to  writing  utlierwise 
than  by  citing  the  ))age  of  the  Inxik  or  law  nuigazine  whiiit  e  it  is 
taki'u.    Ilopt  V.  The  People,  ;!(;,") 

14.  CuEDimLlTY  OF  WITNESSES.— In  revi(>wing  an  instruction  relative  to  tlie 

crediiiility  of  a  wituess  jiiutly  indicted  with  defemlaut,  held,  that  tlu; 
attention  of  the  jury  may  be  directed  to  the  peculiar  circuiii'-taiicis 
surrounding  any  wittiess  that  are  pro|)er  to  be  considered  in  ilctirmiii- 
ing  the  weight  to  lie  attached  to  Ins  testimony.     Stiite  t:  Iliii'j,        :i75 

15.  Stating  ABSTRACT  PUoi'osiTioN  OF  LAW.— The  giving  <if  an  ini-tiu(|i(in 

stating  an  abstract  principle  of  law  not  applitalile  in  a  criuiiiial  cape 
is  not  error  unless  the  lu'inciple  stated  is  erroneous.  Cj)stoiic  r.  The, 
People,  ;!!).-. 

10.  Same  —  Construed,  as  excluding  defenskof  insanity.— On  the  trial 
of  oiu.'  for  murder,  insanity  being  relied  on  as  an  excuse,  the  court  in- 
structed the  jury  that  if  the  killing  had  l)een  shown  by  the  evidence, 
beyond  a  reasonable  doubt,  to  have  be«'n  the  act  of  the  defendan'..  the 
law  i)resumes  it  nnirder,  jirovided  they  further  believe,  fmrn  the  evi- 
dence, that  no  circumstances  existed  excusijig  or  jtistifying  the  act.  or 
mitigating  it  so  as  to  make  it  manslanghter.  Jleld,  that  the  instruc- 
tion was  not  liable  to  the  objection  of  excluding  the  defensi?  or  excuse 
of  insanity,  but,  on  the  contrary,  it  recognized  the  fact  there  might  be 
an  excuse  for  the  act.  Jd. 

17.  And  in  the  same  ca.se,  an  instniction  contained  a  proviso  that  if  the  jury 
further  believed,  from  the  evidence,  beyond  a  reasonable  doubt,  that 
tiie  blows  were  struck  with  mali<'e  aforethought,  either  expr'ss  or  im- 
plied, to  ilnd  the  defendant  guilty.  Hehl,  that  the  in.structiou  did  not 
exclude  the  defense  of  insanity,  wliicli,  if  it  existed,  would  show  .an 
absence  of  malice  aforethought.  Jd. 


INDEX. 


645 


18.  WriETHKR  SUFFICIENT  AS  A  WHOLE.— It  Ihmiir  iniiirrirticalil(>  ti  roqniie 
absolute,  literal  aceuriu-j'  in  iiiKtiuctions,  it  is  therefore  Huflleient  it'  the 
instructions,  eoiisiflerwl  as  a  whole,  sulistantially  present  the  law  of  tie 
cast?  fairly  to  the  jury.    liitzman  v.  The  People,  408 


19. 


20, 


Murder  —  Degree  of,  to  be  found  hy  the  jury.—  Under  a  statute 
which  defines  the  ci-inie  of  nmrder  and  fixes  the  de^iees  thereof,  it  is 
error  for  the  court  to  say,  in  its  charge  to  the  jury,  tliat  tlie  olfcnHe,  l.y 
whomsoever  couimitted,  was  that  of  murder  in  the  lirst  degree.  Uopt 
V.  Utah,  417 


Charge  of  the  court  to  the  effect  that  the  accused  was  to  be  considered 
innocent  until  proved  guilty,  and  that  if  there  was  reasonahle  dciibt. 
and  the  disclosures  did  not  satisfy  the  jurv  of  Ids  guilt,  they  sliouhl 
ac(iuit  him,  is  suflicient.     Oliver  v.  The  State,  i:):'0 

Bribery,  as  to  value  of  thing  offered,  3. 


INTENT. 

Conspirators  held  responsible  althouoh  they  did  not  intend  to 
COMMIT  the  particular  CRIME. —  When  parties  are  engaged  in  the 
eonunissiou  of  a  crime  with  malicious  intent,  and  in  the  exectition 
tii(;reof  perpetrate  another  criminal  act  not  originally  intended,  the 
unintended  act  derives  its  character  from  the  intended' crime,  and  the 
original  malicious  intent  affects  both  acts.    Stater.  Vhiea  et  al,    290 

Assault  with  Intent  to  ^Murder,  1,  2,  3,  11.  Concealing  Stolen  Frop- 
euty,  1.  Cruelty  to  Animals,  3.  Evidence,  1,  3,  43.  Indecent 
Exposure.    Libel.    Keceivino  Stolen  Goods. 


INTOXICATING  LIQUORS. 

1.  Intoxtcatino   liquors  —  Pharmacists. —  A  statute  which  authorizes 

pharmacists  lawfidly  registered  to  keep  si)irituou8  licjuors  ft)r  c^om- 
pojinding  me<licines  does  not  confer  the  right  upon  them  to  sell  the 
Ii(|nors  to  others  over  whom  th(>v  have  no  control,  to  be  bj'them  com- 
pountled  with  medicines.    State  r.  Brown,  21)9 

2.  Single  sale.— Under  the  "Malt  Li(iuors  Act,"  approved  Ajn-il  4,  1873 

(l{ev.,  p.  4!(4,  ij  13,New  Jersey),  a  single  sale  of  any  of  the  li(|Uors  men- 
tioned without  license  makes  the  seller  liable  to  indictment  as  keeper 
of  a  disorderly  house.    State  v.  Fay,  300 

3.  Construction  of  license  law  with  reference  to  charter. — The 

act  is  operative  throughout  the  state  except  in  townships,  cities  and  iu- 
ocriMmited  towns,  where  laws  are  in  force  regulating  the  sale  of  such 
li(juors  outside  of  inns  and  taverns.  Id, 

4.  Same — "  PROiiir.iTiON "' — "  Regulation."- Authority  corfen-ed  upon  a 

town  to  prohibit  all  traffic  in  or  sale  of  intoxicating  drinks,  with  au- 
thority to  license,  regidate  or  orohibit  inns  or  taverns,  held,  not  to  em- 
brace authority  to  regulate  tlie  sale  of  li(iuor8  outside  of  inns  and 
taverns.  Id, 

5.  The  act  of  April  12,  1875  (Pennsylvania),  prohibiting  the  sale  of  liciuor 

on  Sunilay,  and  ])r()vi(ling  a  penalty  by  fine,  does  not  repeal,  by  im])li(a- 
tio'i,  the  jnior  act  of  February  2(),  iH.")5,  prohibiting  the  sale  of  li<jUor  on 
Sunday,  and  providing  a  i)eiialty  by  line  and  imprisonment.  Si/red  r. 
Com.,  304 

fi.  Repeal  by  implication  of  a  prior  statute  by  a  later  one.  Id. 

7.  Sale  by  theoallon  —  Delfvery  in  parcels.— At  trial  of  indictment 
fomiiled  t)n  a  statute  jn'ohibiting  the  sale  of  li(|uor  by  retail  in  t|uaiitities 
less  than  one  gallon,  the  jiuy  asked  of  the  court  the  question :  "  As  a 
distiller,  lias  the  defendant  a  right  to  sell  one  galhm  of  li(|Uor,  and 
receive  pay  therefor,  and  deliver  it  in  less  quantities  at  different  times  i" " 


640 


AMERICAN  CRIMINAL  REPORTS. 


To  wliioh  the  jury  received  for  answer,  "  Tlie  court  doth  instnict  the 
jury  that,  to  constitute  a  sale  by  tlie  unJlon,  there  must  be  a  sah>  and 
delivery  t«)  tJie  buyer  of  an  entire  Kiill*Jn;  that  a  contract  for  a  gallon, 
and  the  delivery  of  the  same  in  parcelH  at  different  times,  is  a  violiition 
of  the  law.  Held:  The  instruction  correctly  expounded  the  law.  Sales 
of  li(]Uor,  in  the  mode  suggested  in  the  (juestion  of  the  jury,  would  ht) 
mere  shifts  to  violate  the  btatute.    Eichardsun  v.  Com.,  479 

Secondary  evidenck  held  incompetent  to  show  defendant  had  no 
PEitMiT. —  In  a  criminal  prosecution  against  a  del'enilant  f»>r  selling  in- 
toxicating li(|tior8  without  taking  out  or  having  a  ju'rmit,  the  countj' 
attorney  testified  that  he  was  ac(|uainted  with  tlie  jirobate  judge  of  tiio 
county;  that  he  understtKxl  he  waa  absent  from  home;  tliat  the  book 
which  he  i>r<Mluced  Wiw  the  journal  of  ]terinits  kept  by  the  prolmte 
ju(lg(>;  that  it  contained  all  the  dnij^gists'  ix'rmils  issued  by  the  Jiroliate 
judge;  that  he  had  looked  into  the  other  journals  kept  by  tlu-  pro- 
bate judge,  and  had  been  unable  to  find  any  record  of  j)eiiiiits  tiici.  in; 
thiit  lie  had  freijuently  heard  the  probate  judge?  testify  in  liipKir  cases 
that  all  of  the  records  of  nerniits  were  kejjf  in  the  b-iok  produced  by 
him;  that  the  probate  juoge  lia<l  another  journal  in  which  he  kept  a 
n-cord  of  the  business  of  his  court;  that  he  went  into  the  oflite  of  (li(» 
]»robate  juilge  and  got  the  lH)ok  when  tlu?  judge  was  not  tin  re;  tli;it 
there  were  other  journals  in  his  oflice;  that  the  book  contained  iintli- 
ing  but  blanks  for  recording  druggists'  permits,  and  thereupon,  against 
the  objection  of  the  defendant,  tlie  court  permitted  such  lK»ok  or  Juin- 
nal  of  permits  to  be  introiluced  in  evidence,  livid  error.  Tlic  Stuti' 
1".  Cook,  4»5 


See  Indictment,  3. 


JEOPARDY. 


1.  Where,  after  the  impaneling  and  swearing  of  a  jury,  it  is  ascertained  tli.it 

a  juror  is  incoiiipt'teiit  to  act  as  such  on  account  of  not  being  a  trcc- 
liolder  or  a  iKuiseholder,  and  the  accused  refuses  to  object  to  the  jiinir, 
and  the<'ourt  thereupon,  of  its  own  motion,  discharges  the  jury,  tlie  :ic- 
ciised  has  lieen  once  in  jeopardy  and  should  lie  released.  Aduiiis  r. 
The  State,  :«)« 

2.  After  the  jury  in  a  criminal  case  was  sworn  the  prosecuting  .attorney  was 

allowed  a  peremptory  challenge,  and  a  new  juror  being  clioseii.  the  jury 
was  again  sworn.  Jlcld,  that  so  long  as  tlu^  jury  first  sworn  wjis  not 
legally  dischargeil.  there  could  not  be  two  juries  sworn  to  try  the  siiiiie 
case:  and  aconviction  by  tlu'  latter  jury  was  nut  a.siile  and  the  prisoner 
discharged.     The  People  r.  Dohiii,  JS'W 

8.  A  jieremptory  challenge  is  not  allowable  in  a  crimin.al  case  after  the  jury 
has  lieen  sworn.  Id. 

4.  A  defendant  acipiitted  of  a  misdemeanor  punishable  by  fine  only  niiiy, 

U])on  siitHcient  grounds,  upon  motion  of  the  state,  be  iigaiii  put  on 
trial,  without  any  violation  of  the  constitutional  jirovision  against  put- 
ting one  twice  in  jeoiiardv  of  life  or  limb  for  the  same  ollense.  Toiiloi' 
V.  The  State,  '  'M 

5.  Less  offense  inoU'DED  in  niiEATER. —  An  indif-tment  for  niunler  was 

found  by  the  gi'and  jury.  Afterward  an  act  of  the  legislature  was 
jiassed,  without  a  saving  ilanse,  which  rendered  it  illegal  to  conviit 
the  accused  of  the  crime  of  murder,  but  did  not  affect  the  law  as  to 
the  ])unisliment  for  manslaughter.  Held,  that,  under  that  indictnieiit, 
the  prisoner  might  be  tried  for  the  latter  offense.    t/a>'ir//.s  Case,     254 

6.  Same.—  The  fact  that  the  a<'cused  hail  lK>en  tried  under  such  indictnieiit, 

convicted  of  murder,  and  juilgnieiit  jironounced  ujiim  the  verdict,  which 
juilgment  was  reversed  because  of  error  in  entering  the  same  (the  law 
having  bwn  bo  modified  as  to  forbid  the  judgment),  will  not  warrant 
liis  discharge  on  the  gi'ound  of  former  jeopjmly  >vhen  subseiiuently 
tried  for  manslaughter  on  the  Hume  indictment.    Id, 


INDEX. 


C47 


Plea  of  arii-TY  whrn  no  complaint  is  made  no  bar  to  pkosecution.— 
A  j)arty  kniiwinp;  liiinsolf  guilty  of  a  misdemeanor,  who  bocomi-a  h\a 
own  prosecutor,  selects  his  own  judge,  confesses  his  guilt,  and  submits 
to  a  judgment  entered  iipon  such  a  confession,  cannot  eseaiw  i^rosecution 
in  the  aitpointed  mode  by  jdeading  a  former  conviction  brougiit  about 
under  sucli  circumstances  —  such  judgment  of  conviction  is  a  nullity, 
Drake  v.  The  State,  320. 


Autrefois  A  pquit  — Autrefois  Convict. 
KismcTioN.    Lakceny,  8-11. 


Justice  of  the  Peace.    Ju- 


JUDGE. 

Authority  op  judoe  not  to  be  questioned  by  private  party.— In 
the  exercise  of  his  i)ul)lic  judicial  functions  the  lawful  autliority  of  a 
judt^e  cannot  Im?  (luestioned  by  a  private  person.  The  attorney-general, 
acting  on  belialf  of  the  state,  can  alone  question,  by  a  writ  of  (jtio  mtr- 
ran  to,  his  constitutional  right  to  exercise  his  judicial  functions. 
C'ui/le  V.  Com.,  379 

JUDICIAL  NOTICE. 

Courts  take  judicial  notice  of  the  day  of  the  week  a  certain  day  of  the 
montli  came  on.    Hubiiison  v.  State,  5W 

Courts  will  not  take  judicial  notice  of  ordinance,  see  Perjury,  4. 

JURISDICTION. 

1.  Abduction. —  I  f  a  person  abducts  and  carries  away  a  woman  child  within 

tlu-  statutory  age,  with  intent  to  seduce,  etc.,  from  one  state  to  another, 
he  may  be  indicted  and  convicted  in  the  latter  state,  if  it  be  shown 
tbat  he  iiiti'r|)os('d  his  will  or  jwrsuasion  between  her  and  her  guard- 
<liair.s  coiiln)!,  wliile  in  the  latter  state,  so  as  to  overcome  her  inten- 
tion to  return  to  her  home.    State  l\  Gordon,  1 

Federal  Ei-f,ction. —  Commission  of  crime  by  United  States  officer,  see 
Election. 

2.  Jurisdiction  over  navigable  stream. —  Gaming  at  cards  in  a  fen-y-boat 

in  tlie  mid<lle  of  the  river  dividing  two  counties,  the  courts  of  either 
couiitv  have  iuris<liction  of  the  offense  under  the  statutes  of  Alabama. 
Dickey  V.  Ttie  State,  249 

8.  Justice  ok  the  peace  — Has  no  jurisdiction  until  a  complaint  is 
filed. — The  power  conferred  (m  justices  of  the  peace  to  hear  and  deter- 
mim;  pro.secutions  for  misdemeanors  cannot  Ije  quickened  into  activity 
until  a  complaint  is  m.ade  —  until  a  case  is  pxesented  he  camiot  exercise 
juristliction.     Di^atce  r.  Tlte  State,  320 

Justices  of  the  Peace.    False  Pretenses,  5.    Larceny,  8. 

JURORS. 


1.  Under  code  practice,  as  formerly,  juror  must  declaub  on  oaxH  that 
HIS  verdict  will  not  be  influenced  by  preconceived  opinion. — 
Under  Code  of  Criminal  Procedure  (New  York),  a  man  who  has  formed  or 
expressed  an  opinit)n  in  reft^rence  to  the  guilt  or  innocence  of  the  defend- 
ant is  still,  as  formerly,  disqualified  to  sit  as  a  juror,  unless  he  declares 
on  oath  that  he  believes  such  opinion  will  not  influence  his  verdict,  and 
that  he  can  render  an  impartial  verdict  in  accordance  with  the  evidence. 
It  is  not  sufticient  to  suppose  merely  that  he  can  determine  the  case 
according  to  the  evidence,  or  that  his  opinion  ought  not  to  influence  his 
verdict.    Tlie  People  v.  Casey,  313 


648 


ASIERICAN  CRIMINAL  REPORTS. 


¥i     1 


S'i' 


2.  Sasie. —  Unon  tho  trial  of  an  indirtniont  for  munlor,  a  man  <'u11i'(1  ns  a 

juror,  anu  clialleiigod  for  biiw,  tcvstilieil  that  he  had  fornied  and  fxincssfd 
an  o]iinion  as  to  the  priHoner's  ^uilt ;  that  he  HUppoM^l  ]ie  would  iuivi>  to 
detennino  the  case  aocorduig  to  the  evidonoo,  and  woiiM  hiiv<.'  to  jro 
according  to  tlio  witnessoH,  but  that  lie  ntill  had  an  opinion  whidi  wnnM 
go  with  liini  into  tho  jury  box,  and  tliis  he  t-ould  notK^'t  out  of"  iiin  mind ; 
that  lie  oould  not  lit-Ip  it ;  and  that  it  nii^j^ht  aMsist  in  inthunuunj^  his  mt- 
dic't.  To  a  cjuostion  as  to  whether  he  would  Kive  Ids  verdift  in  acconlaiici' 
'  with  the  toHtimony  of  the  witneHses,  he  did  not  rej'ly,  Tlu'  (•lia!icn>,'e 
was  overruled,    tield,  error ;  and  that  the  juix>r  waifdisijualiiiiHl.    JU. 

3.  Samk. —  Another  juror  teotifled  that  he  ha<l  heanl  and  read  about  tiic  <a.se, 

and  had  fonniHl  and  ex|)ressed  an  opinion  and  Ktill  held  it.  IIo  was  tin  ii 
asked  if,  notwithstanding;  such  ojnnion,  lie  coidd  sit  Jks  a  juror  and  dctcr- 
mine  the  case  ujjon  the  evidence.  To  this  ho  answeit"*!,  "  Well,  1  sh|)- 
pose  I  could."  lleld,  that  this  was  not  a  responsive  answer,  and  tliat 
the  jui'or  was  incompetent.  Id. 

4.  Same. —  Another  juror  stated  tliat  he  hatl  formed  and  express*^!  and  still 

entertained  an  opinion,  and  tliat  he  would  ^o  into  the  jury  box,  if 
accepted,  with  a  prejudice  in  his  mind,  which  it  would  rcMiuin- evidence 
to  remove.  IIo  was  tJ-.en  asked  it'  the  imitrossion  he  luul  woultl  ill  all 
shajjc  or  influence  his  venlict.  nciiiiswered,  "  Well,  I  woiddnoiiccord- 
inn  to  the  evi<lence."  He  was  a.sked  aj^ain  if,  a])art  from  the  cvidciice, 
his  previously  formed  imja-essioii  or  ))rejudiie  would  aid  at  alt  in  shap- 
ing and  forming  his  verdict.  He  answered,  "  Well,  I  don't  know  tlial  it 
would."  He  vjus  then  asked,  "Are  you  sure  that  it  would  not?"  He 
answered,  "  No,  I  am  not  sure  about  that."  Held,  that  it  was  error  to 
oveniile  the  chalh>nge.  Id. 

5.  Same. —  Another  juror  who  declanMl  that  ho  had  formed,  expressed,  and 

still  held  an  opinion,  was  aski!<l  if,  notwithstanding  this,  he  could,  as  a 
juror,  determine  the  case  lU'cording  to  the  evidence.  He  answered, 
"  Yes,  I  8upiK)8e  I  could."    The  challenge  was  overruled.    i/cW,  error. 

Id. 

6.  Same. —  All  of  said  jurors,  after  tho  court  had  ruled  that  lliey  were  coni- 

lietent,  were  challenged  jieremptorilv  and  t'xcluded  from  the  panel.  It 
api)eared  that  iMifore  t  he  jury  was  fully  impiuieled  all  of  the  peremptory 
challenges  alloweil  defendant  by  law  were  exhausted.  Held,  that  as  by 
the  erroneous  rulings  he  was  obliged  to  use  his  i)eremi)tory  challenges, 
and  was  thus  <leprive<l  of  the-  right  to  challenge  other  jurors,  he  was 
injured,  and  was  entitletl  to  a  reversal.  Jd, 

7.  The  allr)wance  of  a  challenge  for  implied  bias  is  not  the  subject  of  an 

exception.    Sttde  v.  Hiny,  ;]T"> 

8.  GeNEUAL  or  particular  cause  of  CHAI-I.ENOE  — OlNSCIKNTIOUS  f)I'IN- 

lONs. —  A  juror  was  excusetl  upon  the  ground  that  he  entertained  such 
conscientious  opinions  concerning  capital  i)unishment  as  would  pre- 
clude his  finding  defendant  guilty  of  iui  otf(>nse  punishable  with  death. 
llel<f  that  the  objetition  to  tlie  juror  did  not  go  to  the  gem  lal  cause  of 
challenge,  that  he  was  disqualified  from  serving  in  any  cas<\  but  to  the 
particular  cause,  that  he  was  disiiualitied  from  serving  in  the  ciise  on 
trial.  /(/. 

9.  Opinion  of  juror  formed  from  iiearino  report  of  crime. —  A  juror 

who  hiis  formed  tui  opinion  upon  hearing  an  undisputed  report  ol  a 
crime,  but  the  opinion  was  such  a  <»ne  as  wouUl  Ik*  changed  by  the  state- 
ment of  any  credible  ixn-son,  has  not  tho  unciualitied  bidief  and  con- 
viction that  woidd  disqualify  him  froiu  acting  iuipartiiUly  as  a  juror. 
People  V.  O'Limghlin,  i>42 

10,  Defendants  tried  jointly  entitled  to  but  singij?  challenoe.— 
Where  several  defendants  are  tried  jointly  for  a  crime,  having  waived 
their  right  to  separate  trials,  they  are  only  entitled  to  challenge  jointly, 
and  may  have  the  same  number  of  challenges  as  if  it  were  u  single  de- 
fendant being  tried.  Id. 


INDEX. 


G40 


11.  WrrRV  NEW  TRUTi  •WlMi  BK  GRANTED  BY  RKASOX  OF  MISTAKE  OP  .lUROB 
AS  TO  HIS  QUALIKICATIOXS. —  Wlioi'o  a  iiiiui  pivsoiits  liimHelf  in  court  in 
olK3(liuiico  t()  a  Hununoiis  ruijuirinj^  liini  to  appear  as  a  juror,  and  istatoH 
thiit  lui  is  a  c'itizon  of  tlie  United  States,  and  the  defendant  has  no  reason 
to  doulit  the  trutli  of  tlie  stateuient,  the  riyht  to  a  jury  of  twelve  litizi'iia 
of  the  United  States  is  not  waived  by  an  examination  of  the  innposed 
juror  toucliinK  his  other  iiualitieations.  If,  after  verdiet,  the  defenchuit 
learns  that  the  juror  was  mistaken,  and  tiiat  lie  v.-as  not  a  eitlzi'ii  of 
the  United  States,  he  is  entitled  to  a  new  trial,  it  noi  ;i,)peariun  that 
there  w;us  any  nej;ligence  on  the  part  of  the  defendant  tiial  would  work 
a  waiver  of  the  constitutional  rijj;ht  to  a  projier  jurv.  A  defendant  has 
the  rif^lit  to  ])resume  that  none  hut  the  uani(>s  of  ( ilizens  of  the  United 
States  are  ui»on  the  list  from  which  jurors  are  di  iwn,  i\'o>jj/c  i\  Hccse 
and  others,  537 

JURY. 

1.  Drawing  of  jury. — The  jury  act  of  1877  (act  135  of  1877,  Michigan)  re- 
<(uires  the  names  of  jurors  to  bo  drawn  in  turn  from  separates  parcels 
cuiitiiining  names  from  each  precinct  in  the  county.  Tlure  is  also  a  pro- 
vision for  ord»'rin;c  talesmen  to  bo  drawn  from  a  sinj^h;  township  whero 
the  emergencies  of  the  term  do  not  leave  time  for  snmmonin};;  tlu-ni 
from  tlie  county  at  lar^e.  Hut  a  jurv  drawn  three  weeks  before  trial 
for  a  particular  case  of  homiciilo  is  illegal  if  taken  from  only  part  of 
the  townships  in  the  county  and  those  not  .ailjoininj?  the  county  seat 
nor  iiiLludinjj  tho  locality  ot  the  olfense.     The  I'eoi^lc  v.  Hall,  '3o7 

3.  Where  tho  jury  is  polled  in  a  murder  case,  it  is  the  duty  of  each  juror 
to  answer  for  himself  whether  he  finds  tho  prisoner  guilty  of  murder 
in  th(>  lirst  de^reo  or  in  the  second  decree  Whero  tho  response  of 
each  in  such  case  is  simply  KW''ty  without  a  designation  of  tho  degree 
of  guilt,  the  verdict  is  a  nullity.     Williams  v.  Hie  State,  4ir» 


It 


JUSTICE  OF  THE  PEACE. 

Justice  of  the  peace  — Has  no  jurisdiction  until  a  complaint  is 
Fii.K.i). —  The  jiower  conferred  on  justices  of  tho  ])eace  to  hear  and  de- 
termine prosecutions  for  misdemeanors  cannot  betpiickened  intoactiv- 
ily  until  a  coiniilaint  is  made  —  until  a  case  is  presented  ho  cannot 
exi'rcise  jurisdiction.    Drake  v.  Slate,  320 

Pi.EA  OF  (iUII-TY  WHEN  NO  COMPLAIN*  IS  MADE  NO  BAR  TO  PROSECU- 
TION.—  A  party  knowing  himself  guilty  of  a  misdemeanor,  who  be- 
coiiu's  his  own  prosecutor,  selects  his  own  judge,  ccmfesses  his  guilt, 
ami  submits  to  a  judgment  entered  upon  such  a  confession,  cannot 
escape  |)rosecution  in  tiie  appointed  mt)do  by  pleading  a  former  con- 
viction brought  about  under  such  circumstances  —  such  judgment  of 
conviction  is  a  nullity.  Id, 


LARCENY. 

1.  PaUTIN'O  VOLUNTARILY  \VYXK  POSSESSION  AND  TITLE. —  If  tllO   Owner  of 

tlie  goods  alleged  to  have  been  stolen  parts  with  both  the  possession 
and  tiie  title  to  the  goods  to  tho  alleged  thief,  then  neither  the  taking 
uor  the  conversion  is  felonious.    Murphy  v.  The  People,  323 

2.  Otherwise  when  the  owner  intends  that  they  shall  be  returned 

TO  HIM,  ETC. —  But  if  tho  owuer  parts  with  the  possession  volun- 
tiirily,  but  d(X>s  not  part  with  the  title,  expecting  and  intending  that 
the  goods  shall  bo  returned  to  him,  or  that  they  shall  be  disposed  of 
on  his  account,  in  a  i)artiiular  way,  as  directed  or  agreed  upon,  for 
liis  bonellt,  then  tho  gcMids  may  lie  feloniously  converted  by  tho  bailee, 
60  as  to  relate  back  aud  make  the  taking  and  conversion  a  larceny. 

Id. 


650 


AMERICAN  CRIMINAL  REPORTS. 


-1  B- 


8.  A  general  owner  of  goods  may  be  guilty  of  larceny  in  stealing  such  goods 
from  a  special  owner.    Adams  v.  Hiate,  331 

4.  To  constitute  the  crime  of  larceny  in  such  cases,  the  taking  must  be 

felonious.  Id, 

5.  Name— Variance  as  to  alleged  ownership  of  property.— Ap- 

pellants were  convicted  of  the  crime  of  grand  larceny,  for  stoaliiig  a 
.  horse  and  wagon,  the  alleged  projierty  of  one  Sang  Hop.  On  the  trial 
of  the  case  the  owner  of  the  property  stolen  testified  that  ho  had  two 
n.ames  —  a  business  name  and  a  ijereonal  one.  Held,  that  as  the  owner 
of  tlie  pro^ierty  was  known  by  the  name  of  Sang  Hop,  tliat  nanio  was 
BufRcient,  in  legal  proceedings,  whether  he  had  another  name  or  not. 
People  V,  Leong  Qiiong,  'dH 

6.  Same, —  The  name  of  the  owner  of  property  stolen  is  not  a  material  i)avt 

of  the  offense  cliarged.  It  is  only  reipiired  to  identify  the  transaction, 
so  that  tiie  defendant,  by  jjrojjor  plea,  may  protect  himself  against  an- 
other prosecution  for  the  same  offense.  Id. 

7.  Receiving  stolen  goods- Local  jurisdiction  op  offenses  —  f:x- 

ception  to  the  rlTiE. — Under  the  constitution  and  laws  of  tliis 
state,  as  at  common  law.  the  local  jurisdiction  of  all  offensrs  is  in 
the  county  where  the  offense  is  conunitttHl.  Tlie  crime  of  larceny 
is  made  an  exception,  and  the  offender  mav  lie  tried  in  any  county 
to  wiiich  he  carries  the  stolen  ])roiHM'ty,  or  wfiero  it  may  be  fouml,  its 
well  as  in  the  county  in  which  tlie  property  was  first  taken.  Tiiis  rule 
has  no  ajiplication,  however,  to  any  crime  other  than  larceny.  The 
offense  of  receiving  stolen  property,  or  aiding  in  its  coiiceahncnt, 
knowing  it  to  have  lx>en  stolen,  is  not  embraced  in  section  3!);$  of  the 
Criminal  Ct)de  (Illinois),  and  the  i)erson  must  be  tried  in  tlie  county 
where  the  offense  was  committed.     Campbell  v.  The  People,  338 

8.  Same  — Former  ACQUITTAL  in  another  county,  whether  a  rar  to  a 

SECOND  PRosKci'TiON. —  The  trial  and  ac(^uittal,  in  one  county,  of  one 
charged  with  receiving  stolen  goods,  knowing  tiiein  to  have  lu'cn  stolen, 
is  no  l)ar  to  an  indictnieiit  for  the  same  offense  in  a  didcrcnt  cnnnty, 
unless  it  sliall  apju'ar  that  tin;  offense  was  committed  in  the  cimnty  in 
which  the  ac(iuittal  was  had,  so  as  to  give  tlie  circuit  court  of  that 
county  jurisdiction.  An  ac(|uittal  of  a  crime  by  a  court  liaving  no 
jurisdiction  is  no  bar  to  a  proset.utioii  for  the  same  offense  in  a  court 
having  jurisdiction.  Id. 

9.  The  general  rule  at  common  Jaw  is,  that  an  ac^juittal  in  one  county  can 

onlj-  be  pleaded  in  the  same  county,  for  the  reason  that  all  indictments 
are  local;  and  if  the  first  is  laid  in  the  wrong  county,  tiie  defendant 
cannot  be  found  guilt}',  and  could  not  have  l)een  hi  legal  joopanly. 
To  this  rule  there  are  a  few  exi-eirtions,  as,  in  larceny,  and  in  case  of  a 
change  of  venue,  as  in  this  state.  Id. 

10.  Same  — Former  acquittal,  to  be  a  bar,  stost  have  been  in  rksi-ei  t 

TO  THE  same  identical  OFFENSE  —  ANU  THE  PLEA   MUST   SO   SHOW. — 

To  make  a  i>lea  of  a  former  acquittal  or  conviction  a  bar  to  a  second 
indictment,  jtroof  of  the  facts  alleged  in  the  second  must  be  sullicicnt 
in  law  to  have  warranted  a  conviction  ujwm  the  first  indictment  of  the 
same  offense  charged  in  the  second  one,  and  not  of  a  different  offense; 
and  the  plea  must  show  that  the  ofTi'iiso  chnrge<l  in  lM)th  cases  is  the 
same  in  law  and  in  fact,  and  the  (piestion  must  lie  deterininiHl  by  the 
facts  apiiearing  from  the  reconl,  without  the  aid  of  extrinsic  circuni- 
Btances.  Id. 

11.  Same— Op  a  plea  of  former  acquittal  — Its  requisites.— A  plea 

of  an  acquittal  of  the  same  oflfeiise  in  a  different  county  is  defective, 
in  substance,  if  it  fails  to  show  that  the  c;ourt  of  sucli  other  comity 
had  in  scmie  legal  way  acquired  jurisdictiim  of  tlie  subjcM-t-matter,  aiid 
how  such  jurisdiction  was  ac(|uirod,  as.  by  a  change  of  venue,  or,  in 
case  of  larceny,  by  the  defendant  having' taken  the  stolen  property 
into  such  county.  Id. 


INDEX. 


651 


12.  Same  —  A  plea  srrsT  jvsweb  all  it  professes. —  A  special  plea  (as 

a  former  aoc[uittal)  to  an  indictment  containing  several  counts,  if  it 
fails  to  answer  any  one  count,  is  bad  on  demun-er.  Id. 

13.  Chattei.. — A  iirintetl  list  of  names  and  dates  is  a  chattel,  but  not  a 

"  writing  containing  evidence  of  any  existing  debt,"  witliin  tlie  statu- 
tory definition  of  the  subjects  of  larceny.     State  v.  James,  348 


14. 


15. 


16. 


17. 


18, 


Value  op  cHATTEii. — Its  value,  as  a  statutory  subject  of  larceny,  in  its 
luarliet  value.  To  be  of  tlie  market  value  of  §20  it  mast  be  capable  of 
being  sold  for  that  sum  at  a  fairly-conducted  sale.  Id. 

Descriition  op  the  stolen  property.—  Wliei-e  in  an  indictment  the 
stoU'u  projwrty  is  descrilied  as  "  sundry  banlt-bills,  issued  on  the  au- 
thority of  the  United  States,  usually  known  as  '  greenbacks,'  amount- 
ing in  all  to  the  sum  of  !J58!>,"  such  description  is  not  sufficient  to 
siippc^rt  the  indictment,  or  enable  tlie  jury  to  determine  that  tlie  stolen 
chatti'ls  are  the  same  referiH'il  to  in  the  indictment.  Tlie  munbcr,  kind 
and  denomiiiation  of  the  bills  ought  to  l>e  given,  or  a  good  and  sutti- 
cii'iit  excuse  for  not  domg  so  set  forth  in  the  indictment.  Territory  r. 
ShqAcy,  491 

Larceny  by  bailee. —  A  prison*!*  was  convicted  of  larceny  under  the 
following  circumstances :  Tlie  [irosecutor  gave  a  mare  of  his  into  the 
care  of  the  prisoner,  telling  tiim  that  it  w£js  to  be  sold  on  the  next 
Wednesday.  On  the  next  WcHlnesda.y  the  prosecutor  did  not  go  him- 
self to  sell  liis  mare,  but  sent  his  wife,  who  went  to  where  the  prisoner 
was  and  saw  hun  riding  the  mare  about  a  horse  fair,  and  sell  her  to 
a  third  party,  and  receive  on  such  sjvle  some  money.  The  ])rf)secu- 
tor's  wife,  after  such  sale,  asked  tlie  jn-isoner  to  give  lier  the  mtmey, 
saying  she  woubl  pay  liis  expenses.  Tliis  the  prisoiier  decluiefl  to  do, 
and  eventually  lie  'bsconde<l  with  the  money  and  without  iiccounting. 
Ilcltl,  by  the  court  that  tliere  wiis  evidence  that  the  prisoner  was  a 
bailee  of  the  money  thus  jiaid  to  him,  and  that  the  conviction  coulil 
be  supixnieil.     llic  Queen  v.  De  Hanks,  001 

Larceny  by  wiiti:  of  husband's  property  —  Married  woman's  act. 
UiM)n  the  trial  of  a  married  woman  jointly  with  another  person  for 
larceny  of  the  jiroiMTty  of  her  husband,  the  husband  wsis  c,alle<l  as  a 
witness  against  his  wife.  Held,  by  the  court  that  the  evidence  of 
tiie  husband  was  impr<)peiiy  received,  and  that  the  conviction  whicli 
had  taken  place  fouiuh'd  upon  it  wjvs  bad  as  against  both  the  prisoners. 
I'lte  Queen  r.  Brittleton  et  ul.,  605 


Property  procuped  from  another  by  a  series  op  tricks. —  The 
two  i)risonei's  by  a  serit*s  of  tricks  fraudulently  induced  a  bar-maid  to 
l»ay  over  money  of  her  ina.ster  to  them,  witliout  having  received  from 
tliem  in  return  the  i)roper  change.  The  bar-maid  liaxl  no  authority  to  pay 
over  money  without  receiving  the  proi)er  change,  and  had  no  intention 
of  or  kiiowliMlge  that  she  was  so  doing.  //('/(/,  that  the  prisoners  were 
l)roi)erly  convicted  of  liuceny.     I'he  Queen  v.  Hollis,  609 

19.  "Watku  stdkkd  in  pipes. — Water  supplied  by  a  water  company  to  a 
consumer,  and  standitig  in  his  pipes,  may  be  the  subject  of  larceny 
at  common  l^w.    Feoms  ct  at.  v.  O'liricn,  611 

Larceny  from  the  Person.  Distinction  between  robbery  and  larceny  from 
the  jierson,  see  Robbery,  1. 


LIBEL. 

Privile(»es  OF  THE  PRESS  —  GooD  FAITH  OP  PUBLISHER. — In  a  criminal 
prosecution  for  HIm'I,  I'vidence  was  introduced  tending  to  show  that 
the  defendant,  who  was  an  elector  of  Chase  county,  Kansas,  circulated 
an  article  among  the  voters  of  such  county  containing  some  things  tliiit 
were  untrue  and  derogatory  to  the  character  of  the  prosecuting  wit- 
ness, who  was  then  a  candidate  for  the  oflice  of  county  attorney  of  said 


662 


AIMERICAN  CRIMINAL  REPORTS. 


county;  held,  that  if  the  supposed  libel: nis  article  was  circulated  only 
among  the  voters  of  Chiisu  county,  and  only  for  the  i)ur[)ose  of  giving 
what  the  defendant  helieved  to  6e  truthful  information,  and  only  for 
the  purpose  of  enabling  such  voters  to  cast  their  Ijallots  moie  intelli- 
gently, and  the  whole  thing  was  done  in  good  faith. —  such  article  was 
privileged,  and  the  defendant  should  be  ac(juitted,  although  the  princi- 
])a.  matters  contained  in  the  article  may  li  ive  been  untrue  in  fact,  and 
derogatory  to  the  character  of  the  prosecuting  witness.   IState  v.  Batch . 

510 

LICENSE. 

Peddlkus. — An  act  which  discriminates  against  the  jmidiKts  anil  manu- 
factures of  other  states,  bj'  requiring  peddlers  to  obtain  a  license  to 
sell  the  same,  is  unconstitutional  and  void.    State  v.  McUiunis,       'MS 

Gee  Intoxicating  Liquoks. 

MANSLAUGHTER. 

KlLLTXfl   OF  OFFICKR  —  WaNT  OF  KNOWLKDCiE  OF  HIS  OFFICIAL  ('(lARACTF.U 

RKULCES  CRIME  TO  MAXSLAUOIITER. —  A  )R'ace  otticer  has  tlie  rigiit  to 
arrest  one  who  is  cnunitting  a  breach  of  the  peace  in  his  j)ri'si'iu-e,  and 
to  use  such  force  as  is  necessary  to  make  it:  ami  if  the  person  so  dis- 
turl ling  the  p^-ace  knows  that  the  ]ierson  attempting  tlie  arrest  is  an 
ofticer,  and  kills  him.  it  is  nuirder;  if  he  does  not  know  the  fact,  it  is 
manslaughter.    Fleet  wood  i:  Com.,  30 

See  Murder,  17. 

MITTIMUS. 

See  Commit.mf:,t. 

MUNICIPAL  CORPORATIONS. 

1.  The  police  judge  of  the  city  of  Ijcavenworth  lias  exclusive  jurisdiction 

over  all  oifenses  against  the  city  ordinaiUMs,  and  the  city  has  jiowcr  to 
]iunisU  them  by  tine,  imprisonment,  or  labor  on  the  streets.  In  re 
Jiotfx,  no 

2.  There  being  no  S])ecific  provision  in   the  charter  of  the  city  of  T,eav(n- 

worth  concerning  apjieals,  where  (he  line  is  $20  or  less,  such  rigid  may 
iHi  found  under  the  laws  regul.'Vcing  tlie  proce<'diiigs  in  justices'  courts 
in  criminal  cases,  anil  the  p'.titioner  is  entitled  to  his  appeal  in  tliis 
case  uiK>n  tiling  a.  proiK'r  bond.  Jii. 

3.  The  a])peal  being  formally  denied  l)v  the  police  ju<lge,  the  failure  to  fur- 

nish the  bond  should  not  jirejudice  the  petitioner,  if  he  sup[ily  the 
omission  jn'omiitly.  Jd. 

4.  Town  ordinances  must  be  sulM>rdinate  to  and  h.armonize  with  the  gen- 

eral law  of  the  state,  ludess  siiecial  powi'is  are  conferred  upon  the  town 
by  its  charter.    ISiate  r.  Brit  tain,  -I'ty 

6.  Then'fore,  in  the  absence  of  special  authoritv  over  .the  subject,  it  von 
held  that  an  ordinance  j)roliil)iting  the  sale  of  liipior  within  the  corpo- 
rate limits  of  a  town  is  void,  as  tlie  general  law  allows  retailing  ujion 
obtaining  license.  Jd. 


See  Intoxicating  Liquors,  3,  4. 


MURDER. 

1.  What  constitutes  muroeh  —  Of  the  intent. —  Intent  to  kill  does  not 
enter  into  the  definition  of  murder.  It  is  enough  if  the  unlawful 
killing  Ikj  dona  with  mali(!o  uforethought,  either  express  or  implieil. 
Adams  et  at.  v.  The  Peojjie,  851 


INDEX. 


2.  Same.—  If  a  party  of  men  board  a  railwaj'  car,  and  while  the  train  is  run- 

ning draw  (lofi'lly  weapons  on  a  pasHoii;;er,  and  make  him  hold  up  his 
hands  while  they  rob  his  person,  and  then  by  threats  and  intimidation 
cause  him  to  jump  from  the  car  door,  thev  commanding  him  to  dc  -o,  and 
lie  is  thereby  killed,  tliey  will  be  guilty  of  nmrder.  In  sucli  ease  it  is 
not  essential  that  death  should  be  the  probable  and  reasonable  result  of 
the  act  the  deceased  is  forced  to  do.  It  is  sulHcient  that  deatli  or  great 
bodily  harm  was  the  natural  result.  Forcing  a  person  to  do  an  act 
which  <auses  his  death  renders  the  death  the  guilty  deed  of  him  who 
compelled  the  deceased  to  do  the  act.  Id, 

3.  Malice  WHEN  INFERRED.— Malice  maybe  inferred  when  an  act  unlaw- 

ful in  itself  is  done  deliberately,  and  with  intention  of  mischief  or  gieat 
bodily  harm  to  tiiose  on  whom  it  may  chance  to  light,  if  death  is  <jcca- 
sioned  by  it.  By  tlie  statute,  if  an  involuntary  killing  shall  happen  in 
the  commission  of  an  unlawful  act  which  in  its  consecpiences  naturally 
tends  to  destroy  the  life  of  a  human  being,  or  the  act  is  connnitted  in 
the  execution  of  a  felonious  intent,  the  offense  is  declaretl  minder.    Id. 

4.  Same. —  In  a  prosecution  for  murder  proof  of  malice  alone  has  no  tend- 

eiicy  to  prove  that  death  was  caused  by  crime,  until  the  fact  of  death 
by  criminal  means  has  been  shown;  proof  of  malice  may  then  become 
relevant  to  show  a  motive.    People  v.  Hall,  857 

5.  Degree  of  mi'RDER. —  Murder  by  poisoning  is  murder  in  the  first  degi'ee, 

and  a  jiuy  should  be  so  diarged  where  the  information  does  not  state 
its  degree  or  the  mode  of  its  commission ;  and  where  a  jury  does  not 
find  tliat  a  crime  is  in  the  first  degree  it  is  error  for  the  judge' to  punish 
it  as  if  it  were.  Id. 

6.  Onus  on  proseci-tion  to  show  murder  is  in  the  first  degree. —  To 

constitute  the  oifenseof  murder  in  the  first  degi'ee,  the  killing  must  be 
jwedetermined,  and  not  under  mojncntary  impulse  of  passion;  though 
the  detiriiiination  need  not  liave  existed  anj'  particular  length  of  time. 
Prima  fitcie,  all  homicide  is  nuuxler  in  the  second  degree.  Ohms  on 
l)rosecution  to  raise  the  ollense  to  the  first  degi'ee.  McDaniel  v.  The 
Cum.,  369 

7.  What  the  record  must  show.— To  sustain  a  verdict  of  murder  in  the 

first  degree,  the  record  nuist  show  proof,  diiect  or  inferential,  sulficMcnt  to 
justify  the  jury  in  coming  to  the  conclusion  that  the  death  of  the  de- 
cciisfd  was  the  ultimate  result  which  the  concurring  will,  deliberation 
and  premeilitation  of  the  prisoner  sought.  Id. 

8.  Intoxication  may  he  shown.— Where,  under  a  statute  fixing  the  de- 

grees ot  (lime  in  murder,  and  making  provision  tlui., wilful,  deliberate, 
malicious  and  ineineditated  killing  shall  be  murder  in  the  first  degree, 
if  it  npp(-ar  that  the  accns"d  was  intoxicated  at  the  time  of  the  killing, 
it  is  permissilile  to  olfer  testimony  of  that  fact,  leaving  it  for  the  jury 
to  determine  whether  his  mind  was  in  a  condition  capable  of  delib- 
erate premeditation.     Ilojyt  v.  PeojAe,  365 

9.  Same  —  Insanity  produced  by  intoxication,  as  a  defense.— Tempo- 

i-ary  insanity  produced  immediately  by  intoxication  furnishes  no 
excuse  for  the  commission  of  a  homicide  or  other  crime,  but  a  fixed  in- 
Biuiity  does.     Upntone  v.  The  People,  395 

10.  Same,. —  Whether  a  party  committing  a  crime  is  under  the  influence  of 

a  fixed  insanity,  or  a  temporary  one  induced  immediately  by  intoxica- 
tion, is  a  question  of  fact  for  the  jury,  and  their  verdict  will  not  be 
disturbed  unless  it  is  clearly  against  the  evidence.  Id. 

11.  Same.—  While  it  is  true  there  must  be  a  joint  union  of  act  and  inten- 

tion, or  criminal  negligence,  to  constitute  a  criminal  offense,  yet  when 
without  intoxication  the  law  will  impute  to  the  act  a  criminal  intent, — 
as,  in  the  case  of  a  wanton  killing  of  another  without  pn)vocation,  aoI- 
untary  drunkemiess  is  not  availahle  to  disprove  such  intent,  so  as  to  re- 
duce the  crime  from  murder  to  manslaughter.  Id, 


654 


AMERICAN  CRIMINAL  REPORTS. 


!«' 


iUl 


EM 


■hiJiA^ 


l%] 


12.  Same. — Voluntary  intoxication  fumishcH  no  excuse  for  crime  committed 

under  its  influence,  even  if  tlie  intoxication  is  so  extreme  as  to  inuke 
tlie  author  of  tlie  crime  unconscious  of  what  he  is  doinjj;,  or  to  creiite  a 
temjwrary  insanity.  Id. 

13.  Sajie  —  Evidence  of  defendant's  previodh  habits  of  intoxication.— 

On  the  trial  of  a  defendant  for  murder,  when  insanity  is  set  up  in  de- 
fense, and  he  is  shown  to  liave  been  intoxicated  at  the  time  of  tlic 
homicide,  evidence  of  his  previous  intoxication  will  l)e  proprly  re- 
ceived from  the  pr«»ecution,  as  bearing  uiion  the  question  of  intoxica- 
tioii  at  the  time  of  the  kjllin^,  and  of  the  conduct  of  the  defeiidiint 
while  in  that  state.  Id, 

14.  Insanity — When  interposed  as  a  defense.— The  defense  of  insanity 

must  Ihj  established  by  a  preponderance  of  proof;  and,  in  such  case, 
tlie  burthen  is  not  on  the  state  to  satisfy  the  jury  of  the  sunity  of  tlic 
jirisoner  beyond  a  reasonable  doubt.    Gntvat  c.  iitute,  tJKti 

15.  Infants  inder  eiohteen  VEAIts.— Tlie  Revised  Statutes  of  !\Iiss(iuri, 

whidi  e.xemjit  infants  uiulor  ei}j;hteen  yearn,  who  commit  crime,  from 
imprLsoument  in  the  i)enitei;tiary,  do  not  exempt  them  fr(jm  the  deatii 
penalty.     T/ie  Utate  v.  Aiktms,  ^     ;i!V.' 

16.  Between  the  ages  of  seven  and  fourteen  years,  the  law  presumes  an  in- 

fant incapable  of  committing  crime,  and  the  otitis  is  on  the  state  to 
overcome  this  presumption,  which  the  law  supitlies,  by  satisfactory 
evidence.  Id. 

17.  Joint  trf.spas."Ks  —  Enoouraoino  commission  of  rsrAWFUL  act.  rk- 

sultino  in  homiciue  — Liabimtv  for  consequences.— Several  iicrsons 
of  a  party  pa.ssing  along  a  highway  got  out  of  tiie  wagon  in  wiiich  tiny 
were  traveling  und  went  into  an  orciianl  without  permis.sion.  Tlie 
owner  ordered  them  to  leave,  whicji  tliey  refused  to  do,  when  otlicrs 
from  the  wagon  '.'utered  the  orciiard.  armed  with  cloils  of  dirt,  and 
assaulted  the  owner,  using  very  offensive  language  to  him,  and  one  of 
the  1  (arty  struck  the  owner,  with  a  clod,  u|)on  tlie  liaclc  part  of  the 
jH'ck,  (elling  liini  to  tlie  ground,  from  whicii  blow  death  cnsiu'd  in  a 
few  minutes.  It  appeared  tliat  one  of  the  intnuh'is,  who  was  tried  sep- 
arately, took  part  in  the  alfiay,  and  tried  to  kick  tlie  ♦leccased  wliile 
lying  prostrate  from  tlie  blow.  It  was  helil  that  it  was  not  necessary 
to  sliowtluit  he  threw  tiie  missile  wiiicii  caused  tlie  death,  in  order  lo 
sustain  his  conviction  for  manslaughter.  It  was  sulH  ient  that  lie  was 
present,  encouraging  tlie  perpetration  of  the  oU'ense,  to  malu^  liim 
e(|ually  guilty  with  the  jiinty  who  struck  the  fattd  IjIow.  Rilzinaii  r. 
Tlie  People,  40:1 

18.  Principal  and  accessory— Evidence.— Upon  the  trial  of  B.  as  acces- 

sory iR'fore  the  fa<t  to  tlie  murd'.'r  of  II.,  evidence  wius  received  as  part 
of  C.'s  testimony  tending  to  prove  tiic  allegation  of  tlie  indie  tineiit 
that  V.  murdere(l  H.,  ancl  for  no  other  purpose:  held,  that  jis  its  eom- 
l(etency  for  tiiat  purpose,  and  its  iiicompeteiiey  for  any  otin'r  purpose, 
were  distinctly  (h-clared  l>y  the  court  when  it  was  received,  tiicie  was 
no  error.    State  v.  Biizzelt,  410 

19.  Degree  of,  to  be  found  by  the  .ivry.— Tender  n  statute  winch  de- 

iines  tlie  crime  of  murder  and  fixes  the  degrees  thereof,  if  is  e.vor  for 
the  court  to  say,  in  its  cliarge  to  the  .jury,  tiiat  tiie  olVense.  l>y  wlioiii- 
soever  committed,  was  tliat  of  murder  in  tlie  tirst  degree,  lloiit  r. 
Utah,  417 

20.  Same  — POLLINO  jury.— Where  the  jury  is  pcdled  in  a  murder  case,  it 

is  the  duty  of  each  juror  to  say  for  iiiniself  whether  he  linds  the  pris- 
oner guilty  of  JUHrficr  ut  </icyt;'.s<  or  ne.eoiid  detjree,     Williunis  r.  Tin' 


'Hate. 


415 


21.  Each  JUROU  must  designate  DEOREE. —  Where  the  resiH)nse  of  caeli  juror 
in  such  case  is  simjtly  "guilty,"  without  a  designation  of  the  degree  of 
guilt,  such  verdict  is  a  nullity."    And  the  fact  that  the  clerk,  imuiediatily 


INDEX. 


655 


after  polling  the  jury,  called  upon  them  to  hearken  to  the  verdict  as  the 
court  had  recorded  it  —  "  your  foreman  saith  that  J.  W.,  the  prisoner  at 
the  bar,  is  guilty  of  murder  in  tlie  fii'st  degree,  and  so  say  you  all "  — 
does  not  affect  the  question.  Id. 

23.  Indictment  FOR — Wilful,  deliberate  and  premeditated  —  Mauce 
AFORETHOUGHT. —  In  reviewing  an  indictment  for  murder,  held,  that 
cliarging  the  liomicide  to  liave  been  witli  "  malice  aforethought "  is 
tantamount  to  an  averment  that  the  act  was  "  wilful,  deliberate  and 
premeditated."    State  v.  Hing,  875 


NEW  TRIAL. 

New  trial  granted  when  witness  discovers  that  he  was  honestly 
mistaken  in  his  testimony  as  to  certain  material  facts.— on  the 
trial  of  one  for  murder,  the  only  evitlence  connecting  the  accused  with 
tlie  crime,  wliich  was  committed  in  the  city  of  Chicago,  was  tlie  testi- 
mony of  a  saloon-keeper  of  that  city,  who  testified  to  facts  and  circum- 
stances pointing  very  strongly  towards  liis  guilt  or  participation  in  the 
liomicide,  no  witness  seeing  the  murder  or  identifying  tlie  party  who 
committed  the  act.  Tlie  prisoner  denied  all  the  material  fa<  ts  m  this 
witness'  testimony,  and  testified  to  l)eing  absent  in  the  country  on  tlie 
night  of  tlie  murder,  wlien  the  saloon-keeper  said  lie  was  in  his  place  of 
business,  about  10  or  13  o'clock,  the  accused  stating  that  early  in  the 
Diorning  after  tlie  murder  took  place  he  boavdeu  a  freight  train  going 
into  tlie  city,  as  it  was  moving  slowly,  and  concealed  liimself  in  a  car, 
the  contents  of  wliich  he  described,  to  some  extent.  In  this  he  was  in 
some  measure  corroborated  bj-  other  witnesses  as  to  the  facts  and  cir- 
cumstances detailed  by  him,  and  as  to  the  contents  of  one  of  the  cars  on 
that  morning  train,  tlius  presenting  a  question  to  the  jury  as  to  whose 
story  and  version  went  true,  or  entitled  to  belief.  To  rebut  the  prison- 
er's statement,  witnesses  were  called  who  testified  that  the  car  doors  on 
such  freight  train  were  shut,  and  sealed  with  tin  seals,  which,  on  exam- 
ination, after  the  arrival  of  the  train  in  Cliicago.  were  found  to  indicate 
no  evidence  of  having  been  broken,  the  witnesses  expressing  the  opinion 
that  the  car  could  not  have  been  entered  without  disturbing  the  seals  so 
as  to  Ik.'  readily  detected.  The  jurv  found  the  accused  guilty,  thereby 
giving  no  credit  to  his  evidence.  (3n  motion  for  a  new  trial,  affidavits 
of  several  ])ersons  were  jiroduced,  one  of  them  being  a  witness  who 
had  testified  for  the  i«'ople,  who,  after  experimenting  with  car  doors 
fastened  and  sealed  as  the  cars  on  the  train  spoken  of  were,  stated  on 
oath  that  they  found  that  cnrs  f  istened  the  same  as  the  one  the  accused 
claimed  to  have  entered  coidd  be  opened  and  closed  leaving  the  seals  in 
apparent  good  order,  and  without  breaking  or  injuring  the  same,  and 
that  they  would  so  testify  if  a  new  trial  should  be  granted.  The  facts 
statiid  in  these  affidavits  were  not  contradicted,  nor  was  anything  pre- 
seiiteil  to  break  their  force.  Tiie  court  di'iiied  the  niotion  for  a  new 
trial.  Itchl,  that  tlie  court  erred  in  refusing  a  new  trial,  in  order  that 
the  newly  disct)vered  evidence  might  be  heard.    Keenan  v.  The  People, 

484 

VKltniCT  AGAINST  THE  EVIDENCE. —  Where  one  was  convicted  of  an  as- 
sault on  his  wife  with  intent  to  kill  and  murder  her,  and  the  proof 
was  clear  that  the  accused  did  shoot  his  'vite,  it  was  Iteld  that  the 
question  whether  the  shooting  was  an  accident,  or  was  intentional,  was 
a  »|uestion  of  fact  for  the  jury;  and  that  when  they  have  settled  that 
fact  adversely  to  the  defendant,  without  passion  or  pfejiidice,  in  accord- 
ance with  the  evidence,  it  was  not  the  province  of  tliis  court  to  disturb 
the  verdict.     Dunn  v.  Tin'  reoplc,  53 

Enti;uin(j  juuv  rooji. —  The  fact  that  a  man  was  seen  to  enter,  through 
a  window,  a  room  in  wliicii  a  jiuy  had  been  sent  to  deliberate,  without 
jiniof  that  the  jury  were  still  in  tlie  room,  will  not  invalidate  a  verdict 
subsequently  returned  by  the  jury,  where  it  is  shown  by  the  tcbtiniony 


056 


AMERICAN  CRIMINAL  REPORTS. 


^S'-' 


i, 


W 


of  the  jurors  tliat  no  person  other  than  the  jurors  and  bailiff  entered 
the  room  in  wliicli  the  jury  were  actually  confined  during  their  delib- 
erations.    Hair  v.  The  State,  127 

4.  Question  of  fact  and  of  law. — Ordinarily,  whether  tliero  is  evidence 

to  warrant  a  conviction  in  u  criminal  case  is  a  <|uesti<m  for  the  jury, 
the  court  taking  care  always  to  see  that  no  manifest  injustice  has  lu'en 
done;  but  whether  tlie  verdict  is  contrary  to  the  law,  is  a  (juestion 
for  the  court.    Ker  v.  The  People,  211 

5.  When  verdict  is  aoaixst  the  law. —  A  verdict  in  a  criminal  case  is 

against  the  law  when,  admitting  all  the  evidence  ten«ls  to  prove,  it 
does  nt)t  show  the  crime  chargetl.  Id. 

6.  Much  ciintion  is  used  h.y  the  reviewing  court  in  granting  a  new  trial 

whei-e  it  is  asked  solely  on  the  ground  that  the  vi'rdict  is  contrary  to 
evitlence,  gi-eat  weight  being  given  to  the  verdict  of  the  jiu'y.  Mv- 
Danicl  r.  The  Com.,  'MQ 

7.  Ignorance  of  disqualification  of  juror.— Where,  in  a  crit    iial  pro- 

ceeding, a  man  jtresents  himself  in  coia't  in  obedience  to  a  .-iiimuKms 
reijuiring  him  to  appear  as  a  juror,  and  states  that  he  is  a  <iti/.en  of 
the  United  States,  and  the  defenihiiit  has  no  reason  to  doubt  tiie  truth 
of  the  statement,  the  riglit  to  a  jury  of  twelve  citizens  of  llu'  United 
Stati's  is  not  waived  by  an  examination  of  tlu'  proiM)sed  juior  touch- 
ing his  other  (jualiiications.  If,  after  verdict,  tiie  defemlant  learns 
that  the  jiu'or  was  mistaken,  and  that  he  was  not  a  citi/en  of  the 
United  States,  he  is  entiti«'d  to  a  new  trial,  it  not  ajipea'-iiig  liiat  there 
was  any  negligence  on  tlie  i)art  of  the  defendant  tliat  would  work  a 
waiver  of  the  constitutional  right  to  a  i)roper  jury.  A  (U'lendiiiit  has 
the  right  to  presume  tliat  none  luit  tin'  names  of  citizens  of  tlie  United 
States  are  upon  the  list  from  which  jiu'ors  are  drawn.  Vcoiilc  v.  liccse 
et  al.,  '  527 

See  Practice,  1,  13,  14,  lo,  19,  23.    Sentence,  1. 


NUISANCE. 

1.  Immaterial  averment. — It  is  necessary  to  prove  matter  of  iles'ription 

only  where  the  avermi'iit,  of  which  the  descriptive  m;!tt  t  furnis  a, 
part,  is  material.     Sintc  r.  Dame,  444 

2.  Same  — Disorderly  house  — Ciiaracteu  of  those  who  rRi:<.>ui;NT  it. — 

The  indictment  i)eing  for  kee])ing  a  disorderly  house,  an  a\erment 
tiierein  that  "in  tiie  said  house  certain  evil-disposed  persons,  as  well 
men  as  women  of  evil  name,  fame  and  convi  rsation,  to  come  l(i;;ctiier,"' 
etc.,  is  immaterial  —  might  be  rejected  as  surplusage,  and  it  w;is,  tiiere- 
fore,  unnecessary  to  prt)ve  it.  Id. 

3.  IIon-i'EN. —  The  keeping  of  a  hof;-])en  may  be  a  nuisance,  and  as  such  .a 

violation  of  the  criminal  law,  and  ijunishable  under  the  ttatuti'.  In 
re  Jiulfs,  Petitioner,  440 

OBSCENE  LITERATURE 

1.  Expert  testimony  not  admissiule,  ¥.tc. —  On  the  trial  of  an  indict- 

ment under  the  clause  of  tlie  Penal  Codewliich  makes  tin-  selling, 
loaning,  giving  away  or  showing  of  an  obscene  or  indecent  book,  writ- 
ing, jncture  or  photograph  a  misdemeanor,  the  (piestion  of  obscenity 
or  indecency  is  one  that  falls  within  the  range  of  ordinary  intelligence, 
and  does  not  require  the  testimony  of  an  exjiert  in  literature  or  art. 
TtiC  People  v.  MuUcr,  Ah'S 

2.  Same. —  On  the  trial  of  an  indictment  for  selling  ol)seene  and  indecent 

photogi'aphs,  the  defendant  called  as  a  witness  an  artist,  and  asked  liim 
wliether  there  is  a  «listinguishing  line,  as  understood  by  artists,  between 
pure  uud  obBceue  and  iudeceut  ai't.  This  was  objected  to  uud  vxcludeil. 


INDEX. 


6r 


>i 


ITcM,  no  error.  If  the  question  was  intended  Bimply  to  brinp;  oiit  the 
fact  that  i)ii'tiiro9  might  Ix!  eitlier  decjent  or  indecent,  and  that  the 
taiions  of  jmn!  art  would  a^'cojjt  those  of  oneclasH  and  reject  the  otliera. 
it  was  jirojK'rly  reje<-t<'d  as  an  attenij)t  to  prove  a  self-evident  i»ro|K)8i- 
tion;  hut  if  the  (|Uestion  was  intended  to  l)e  followed  by  prodf  that, 
accordiii}!;  to  the  artist's  standard,  the  photo^aphs  were  not  olweene  or 
indecent,  it  was  properly  rejected,  ixa  such  proof  was  incompetent.  It 
was  likewise  held  that  the  intent  of  the  defendant  in  sellinf?  the  pho- 
tographs was  iKit  an  element  in  determining  his  guilt,  and  that  there- 
fore evidence  of  intent  was  incomi»etent.  Id. 

OFFICER. 
See  Arrest.     Bribery.     Corruption    in    Office.     Election.      Man- 

SLAUOHTER.      UESISTINO  AN  OFFICER. 

ORDINANCE. 
See  Municipal  Corporations. 
Coiu'ts  cannot  take  cognizance  of  ordinance,  see  PEltlURY,  4, 


PARDON 

1 .  Pardon  by  ooverxor. —  The  governor's  ])ardon  relieves  the  offender  not 
only  of  the  jiunisliment  ani\exed  to  the  offense  of  which  he  was  con- 
victed, hut.  also,  of  all  jH'nalties  and  conseipiences,  inclusive  of  the  ad- 
ditional ]iunishmeiit  iin])osal)le.  not  hy  reiison  of  the  sentence  for  the 
second  olfensc  alone,  hut  in  conseijuence  of  that  sentence  and  the  sen- 
tence in  the  former  ciise.  crcrpt,  however,  |M)Iitical  disabilities  growing 
cmt  of  his  conviction  and  sentence.  Such  pardon  does  not  restore  an 
otlice  forfeited,  or  rights  that  have  Ix'come  vested  in  others  by  reason 
of  till' conviction  and  sentence.     Edirardx  v.  Com.,  460 

J.  Statkmf.nt. —  E.  was  convicted  in  corjioration  court  of  D.  of  felony  in 
March.  1HH;{,  and  sentenced  to  <'oiihiienient  in  the  iK'niteiitiarv.  In 
.Inly.  1HS!{.  h('  was  arraigned  in  the  circuit  court  of  Ricliinond,  upon  an 
infonnation  alleging  that  he  had  been  before  convicted  and  sen- 
tem-eil  for  a  like  otfeiise.  towit.  in  ibircli.  1H8I.  He  jileaded  a  full  pai'- 
don  from  the  governor  for  the  first  olfense,  granted  in  April,  1HH3.  A 
(h'lnurrer  to  this  [tleawas  sustained,  an<l  he  was  sentenced  to  a  further 
term  of  live  years  in  the  jienitentiary,  under  Code  1878,  cli.  l!).j,  2.").  On 
error,  it  wa.s  held  that,  1st.  the  govenior's  jiardon  having,  in  a  legal 
sense.  blottc<l  out  the  first  tjtfeiise.  it  must  be  regarded  as  though  it  had 
never  been  coininitted;  2d,  that  the  demurrer  to  the  plea  should  have 
been  ovi'rruled.  Id. 

PATENT  LAWS. 

1.  Patentee  not  protected  a(iainst  violation  op  state  laws.— The 

sole  object  and  jmrpose  of  the  patent  laws  is  to  give  to  the  inventor  a 
iiiono|ioly  of  what  he  has  iliscovered.  What  is  granted  to  him  is  the 
exclusive  right,  not  the  abstract  right;  but  the  right  in  him  to  the 
exclusion  ol  eveiybody  else.  He  is  not  authorized  by  the  ])atent  laws 
to  nianul'acture  and  sell  the  patented  article  in  violation  of  the  laws  of 
the  state.  His  enjoyment  of  the  right  may  be  modified  by  the  exigen- 
cies of  the  community  to  which  lie  bi^longs,  and  regulated  by  laws 
wliich  reii<!er  it  subservit>nt  to  the  general  welfare,  if  held  subject  to 
state  control.    In  re  Bi-o.tmdian,  16 

2.  Patent  —  In  what  sense  a  contract.— A  patent  is  a  contract  only  as 

iH'tween  the  parties  to  it,  namely,  the  United  States  on  one  side  and  the 
patentee  on  the  other,  and  tlie  rights  conferred  thereby  can  extend  no 
further  than  the  right  granted  to  the  patentee  under  the  patent  laws. 

Id. 
See  Constitutional  Law,  -1-14.    Habeas  Corpus,  3,  4. 

^.     Vol.  IV  — 42 


(158 


AMERICAN  CRIMINAL  REPORTS. 


PERJURY. 

1.  False  AFB'iDA\nT. — A  plaintiff  in  an  action  of  detinue,  who  is  with- 

out right  or  title  whu-li  will  supimrt  the  action,  and  who  wilfully 
and  corruptly  swears  falsely  to  an  aflldavit  of  ownership,  thereby  i)ro- 
curinj;;  an  order  of  seizure  from  thet)Hicer  issuing  the  summons, —  an 
order  the  ollicer  caimot  withhold  if  the  plaintitf  also  executes  a  proper 
bond,—  is  Kui'tj'  of  legal  i)t>rjury,    Jacixys  v.  Stati',  465 

2.  Materiality  op  matter  falsely  sworn  to.—  An  affidavit  made  at  the 

commencement  or  |)endingasuit  to  prtx-ure  the  exercise  of  some  partic- 
ular |M)\ve'.'  from  tlw*  court,  or  fi-om  some  olHcer  ther(Y)f  charRed  with 
the  exercise  of  |K)wer,  ami  which  can  exert  no  influence  in  any  suhse- 
(jueiit  stiige  of  the  ])roceedine:,  constitutes  indictable  perjury,  if  the 
matter  falsely  sworn  to  be  materiitl  to  the  point  of  incjuu-y  at  tlie  time 
it  is  made.  Id 

3.  It    is    not    SrKFKaEXT    to    show  that    nEKKNDANT     MADE     DIFFEltKNT 

STATi'MKNTS. —  In  the  trial  on  an  indictment  for  per  jury,  to  secure  a 
conviction  it  is  not  sufficient  tt)  prove  that  the  defendant,  at  different 
times,  testified  to  two  opposite  things  irrec()ncilai)le  with  each  other. 
Till  ic  must  be  testimony  outside  of  his  own  contradictory  statements 
as  to  whicli  of  such  statements  is  false.     Freeman  v.  The  State,       470 

4.  Ordinances  must  he  proved. —  Courts  cannot  take  cognizance  of  the 

ordiiianct's  of  an  incf>rporated  town.  They  are  subJiHts  of  jiroof.  In 
an  indictment  for  jicr  jury,  assigned  ujxhi  testimony  given  in  a  mayor's 
court  ivu  the  trial  for  a  violiUion  of  a  municipal  ordinan(!e,  the  indict- 
incJit  should  so  ehai')<e  it,  iUid  the  evidejice  should  prove  it.  hi. 

5.  Denial  of  having  been  in  PitisoN  ls%  if  faksk. —  Where  a  party  ac- 

cused of  crime  testifies  on  cross-t'xamination  before  a  United  States 
connnissiorier  that  he  had  never  been  in  prison,  when  thefiict  was  that 
he  had  Imcu,  such  false  answer  amount.s  to  "  material  matter"  within 
the  meaning  of  \i.  S.,  sec.  ."tliU:?,  and  Ls  indictable.  United  Statett  v. 
Lamhsbenjy  474 

PRACTICE. 

1.  The  indorsement  iton  an  infoiuiation,  after  going  to  trial,  of  the 
names  of  additi<inal  witnesses,  is  groun(l  for  a  new  trial,  if  done  with- 
out leave  of  court.     Tlte  People  v.  Movan.  47(i 

3.  Court  jl\v  permit  names  op  additional  witnesses  to  be  plactcd  on 
information. —  It  is  within  the  discretion  of  the  court  to  permit  the 
niune  of  a  witness,  known  to  the  jinxsi-cuting  attorney  at  the  tim(!  of 
the  filing  of  the  iid'ormation,  to  Im*  indorse<l  tlu-iijon  after  the  conunence- 
ment  of  the  trial,  and  to  pernut  such  witness  to  testify  on  the  part  of 
the  state  in  a  criminal  ynxiecutitut  over  ilefendant's  obji!ction.  The 
State  V.  Cwk,  485 

3.  But  the  names  of  witnesses  caimot.  against  objection,  he  wlded  to  the 

information  without  a  showing  that  they  were  not  known  earlier,  and 
in  time  to  give  defendant  notice  in  seatujn  to  anticipate  their  presence 
before  trial.    Pe.opCe  v.  Hall,  5<57 

4.  When  the  insertion  of  an  iMiiKvessaiy  ■\Tord  in  an  information  does  not 

tend  to  the  prejudice  of  the  defendant,  and  does  not  incjudice  the  in- 
formation or  the  description  of  the  offense,  it  should  be  disii'gtn'dcd. 
Peojde  V,  Flores,  4K5 

5.  When   an  indictment  Ls  lost  or  mislaid,  after  arraignment  of  the  ac- 

cused, the  tt)urt  baa  jMJwtn-  to  substitnto  a  <;oi»y  and  |)roc;e<>d  to  trial 
upon  the  reconl  thus  made,  the  same  as  uiK>n  the  origmal  indictment. 
The  State  v.  Steisiger,  4i*2 

6.  Presumed  that  defendant  was  arraigned,  etc.— Where  the  record 

does  not  disclose  that  tlie  prisoner  was  arraigned  and  pleaded,  the  at- 


INDEX. 


C59 


raij^nmont  and  plea  will  be  presumed,  iinlcas  there  be  Homothing  whicii 
afHrniativoly  shows  tlieir  ansenee.     Territoru  v.  Shiphij,  491 

7.  Appeal  and  writ  of  ekkor— An  appellate  couut  willdismish  ap- 

peal (>!<'  escaped  convict.— An  nppollatu  cimrt  will  i-L-fusc!  to  hour  a 
criiiiiiial  fusn  on  a  writ  of  error  where  the  ])laintifr  in  error  lias  escaped 
and  is  not  witiiiu  the  control  of  tlie  court  below,  either  actually,  by  l»e- 
inj;  in  custody,  or  constructively,  by  being  out  on  bail.  Wuudmn  v. 
The  .State,  477 

8.  Same. —  On  amotion,  where  it  ai)peared  to  the  court  that  the  plaintitF  in 

error  had  broken  jail  and  escap(!d  from  custody,  leaving  iiis  cause 
pending  in  court:  Ordered:  Tliat  the  writ  of  error  be  dismissed  at  the 
next  term  of  tlie  court,  unless  it  is  made  to  appear  to  the  court  on  or 
before  that  time  tiiat  the  plaintiff  in  error  is  in  the  custody  of  the 
proper  ollicer  of  the  law.  Id. 

ft.  United  States  courts  — Writ  ob'  error,— Section  3  of  the  act  of  con- 
gress of  June  2iJ,  1874,  allows  a  writ  of  error  from  the  supreme  court 
to  the  supreme  court  of  tlie  territory  of  Utah,  in  criminal  Ciuses,  when 
t\w  accused  has  l)een  convicted  of  bigamy  or  jiolj'gamy.  or  has  been 
sentenced  to  deatli  lor  any  crime.     Wigginn  v.  The  People,  etc.,      494 


10. 


II. 


Certificate  of  division - 
U.  S.  V.  Hamilton, 


\-i. 


-Motion  to  quash  — Discretion  of  court. 

477 


Generally  —  Plea  in  abatement. — A  plea  in  abatement  will  not  lie  to 
an  indictment  for  that  tlie  court,  if  a  suiticient  numl)er  of  the  jurors 
suuuiioned  are  not  in  attendance,  causes  the  reipiired  nuud)er  to  be  re- 
turned from  tlie  coniitif  at  targe.  Nor  for  that  two  or  more  of  the 
graiiil  jury  which  found  the  indictment  had  served  cm  another  gi'and 
jury  at  tli(^  same  term.     How  tliey  voted  <m  tlie  indictment  as  mem- 


lU. 


14. 


15. 


bcrsof  tlie  first  gland  jury  could  not  proju'rly  be  in(}uired  into.  Nor 
for  tiiat  the  shi-rilf  or  his  deputy  were  in  the  grand  jury's  room  when 
they  wcredelilu'raUng  and  examining  witnesses  upon  whose  testimony 
the  hulictment  wa«  found.    Jiiehardsoii  v.  Tlie  (Jem.,  479 

DiSOnEDIENCE  to   RULE  SEPARATING,  RENDERS  WITNESS  OUILTY  OF  CON- 

TEMlT,  BUT  NOT  INCOMPETENT.  —  While  We  tliink  it  a  sound  rule  of  pra<> 
tiee,  in  jaitting  witnesses  under  the  rule,  to  swear  all  of  tluan  on  both 
sides  and  seiul  them  out  of  hearing  until  i-alled  to  testify,  still  we  know 
of  no  law  whicii  renders  a  witness  incomi)etent  because  he  has  heard 
some  of  the  testimony  on  the  sid(s  opposed  to  that  «m  which  he  wa« 
called.  It  niigiit  lie  a  ground  to  attach  the  witness,  but  not  to  excludes 
him.     Rookti  v.  The  State,  483 

Counsel  must  confine  their  arouments  to  the  evidence.—  Counsel,  in 
their  arguments  to  the  jury,  are  bound  to  keep  within  the  limits  of  fair 
and  temjH'rate  discussion  of  the  evidence  in  the  ciise.  Any  violation  of 
this  rule  entitles  the  adverse  partv  to  an  exception.  State  i\  Haiitietf, 
'd'6;  Campbell  c.  The  People,  '  338 

Prosecutor  should  not  comment  on  failure  of  defendant  to  tes- 
tify.—  In  a  criminal  action,  where  the  prosecuting  attorney,  in  making 
his  argument  to  tlie  jury,  claims  that  the  defendant  is  guilty  because  he 
failed  to  testify  in  tins  case  and  deny  the  facts  alleged  against  him,  and 
tlie  defendant  is  afterwards  found  guilty  by  the  jury,  held,  that  for  such 
irregularity  on  the  iiart  of  the  prosecuting  attorney,  the  defendant,  on 
Ids  motion,  should  lie  gi'anted  a  new  trial,  and  that  a  mere  instruction 
from  the  court  to  the  jury,  that  the  jury  should  not  pay  any  attention 
to  what  was  said  by  the  prosecuting  attorney  with  regard  to  the  defend- 
ant's failure  to  testify,  is  not  suflk'ient  to  cure  tlie  error  committed  by 
the  prosecuting  attorney.    State  v.  Batch,  516 

Same. —  Ujion  the  trial  of  a  defendant  charged  with  a  criminal  offense 
the  latter  rested  without  testifying.  The  state  iiitro<hiced  a  witness  and 
offered  to  prove  certain  facts,'  to  whi(;li  the  defendant  objcted  as  not 
being  proper  i-ebuttol.    Theremin  the  county  a  t  torney  said  to  the  court, 


it: 


660  AMERICAN  CRIMINAL  REPORTS. 

in  the  hearinR  and  jn't'senco  of  the  jury :  "  Your  Ilonor,  we  had  a  ripjlit 
to  prosunio  tlmt  tluMlvfondant  woiild  towtify  iih  a  witiu'ss  in  )iiH  own  l)c- 
hulf,  in  wliic'h  cuho  this  cvidciico  would  hnvold'cnproiMT  rt'tnittul,  and, 
lie  haviii;;  failed  todo  so,  we  claim  the  ri;j;ht  to  iiitro<luri'  it  now."  Jit  Id, 
that  these  lenuirks  to  the  court  were  not  such  n\i  infrin;;eineiit  upon  the 
Btatute  forhiddiuK  the  j)rosecutin);  attorney  to  refer  to  the  fact  tiiat  tlie 
defendant  <lid  not  testify  in  his  own  In-half  a.s  re(|iih('s  us,  luider  the  cii- 
cunistances  of  this  case,  to  grant  a  now  trhil.    State  v.  Masley,        !^)2\) 

16.  A  grand  Juror  cannot  he  compelled  to  disclose  how  he  or  any  other  juror 

voted  U|M)n  an  indictnu-nt,  hut  he  may  he  re(|uired  to  give  the  testimony 
of  a  particular  witnt>ss.     Ex  iHtrto.  StnitiKj,  .Wl! 

17.  WnKN  oaiECTioN  MUST  UK  TAKKN  TO  iN'incr.MKXT.— If  the  negative  alle- 

gation that  the  mother  or  child  did  not  die,  which  lessens  the  puuisli- 
nient  under  tliH  statute,  he  necessary  in  the  indictMient.  se<'tioii  5:!  i>f 
the  criminal  |ir<M'eilure  act  re(|uiri's  that  any  olijection  to  the  "iiiissi'in 
shall  1h3  taken  hefoi-e  the  jury  is  sworn,  and  it  i;i  tliee.  amcndahi". 
Stdtt-  V.  aedickv,  (( 

IH,  Copy  of  indictment  and  list  of  jurors  have  to  he  served  on  the  accused 
two  days  before  trial,  hut  not  lM'fori>  arraignment.  Tlie  Stdtc  ii.  t'lil- 
fonl,  rt 

n>.  The  granting  of  a  contituiancje  is  within  the  legal  discretion  of  the  court 
«  (/»o,  with  which  this  <'ourt  will  not  interfere  without  manifest  cause, 
So  of  th(^  ii'fusing  of  a  new  trial  to  the  accused.  hi, 

20.  Accused  is,  luider  no  law,  entitled  to  a  commission  to  take  the  t"stimony 
of  witnesses  residing  in  another  state.  /(/. 

il.  Civil.  I'RACTK'E  .VCT  NOT  AiM'l.K!Ain,r,. — The  provisions  of  the  Code  of 
Civil  l*i"o<'eihu'e.  making  certilie(l  copies  of  the  records  of  foreign  coun- 
tries evidence,  and  prescribing  the  manner  of  authentication,  are  not 
apj)li<'uhle.     IVic  l'vo}iU'  i\  IfAiyviiciHii',  2)0 

•i'i.    Ri:STKAIMN<J    VIOI.KNCK    OV    A     I'lUSOXKIl    PKNOINO  MOTION    I'OR   A   NKW 

THIAL.— After  the  ti'ial  and  conviction  of  a  prisoner.  u|>on  a  chiirne 
of  nuirder,  upon  the  he.iringof  a  motion  for  a  new  trial,  which  lia<l 
iM'en  continuiii  to  a  Kul>sei|uent  term,  the  prisoner  hi'oke  out  into 
nianif(^statioiisof  ragtwuid  violence  towards  theotUceiM,  and  attem|>tecl 
to  break  Jiway.  Thereupon  handcuffs  wer(>  jilaced  upon  his  wrists  to 
restrain  him.  It  was  lielii  there  was  no  error  in  thus  jireserving  order 
and  |irot(H-ting  the  sheriff  arid  his  bailiffs  from  violence,  and  that  it 
could  not  affect  the  justness  of  the  verdict  at  the  preceding  term,  nor 
the  sentence  following  the  overruling  of  tiie  motion  for  a  new  trial. 
Ui>Ht(me  i\  The  Pvaplc,  :«».■) 

3!$.  Where  the  court  ordei-s  witnesses  to  be  exclud(>d  from  the  <'ourt  roirtn 
during  the  op»>ning  statement  and  the  taking  of  tesliniony,  it  is  a  mat- 
t<'r  of  discretion  with  tluM-ourt  to  allow  a  witness,  who  has  remained 
through  a  ndsunderstanding  of  the  order,  to  testify,  anrl  then  remain 
during  the  rest  of  the  trial,     i'eoyj/c  r.  O'Ldiiyhliu,  .>)-,> 

PRESUMPTIONS. 

Presumption  of  guilt,  see  BrKul.AKV,  0.  As  to  t-apacity  of  infant  to  com- 
mit crime,  see  ISKANTS,  1,  2.  As  to  ai-raignment  of  defendiuit,  see 
Practice,  6. 

PRINCIPAL  AND  ACCESSORY. 

1.  Tl»e  statute  of  K.ansjw  authorizes  tin.'  charging  of  aii  accessory  before  the 

fact  us  11  principal.    State  r,  Munleif,  ii'JSl 

2.  Upf>n  the  trial  of  an  accessory  before'  tlu.'  fact,  the  record  of  the  conviction 

of  the  principal  is  i)r<H)f  jtriina  facie  of  that  fact;  but  this  is  not  <'on- 
clusive,  and  other  evidence  of  the  connnission  of  the  crime  by  the  prin- 
cipal is  admissible.  /''• 
See  Autrefois  Acquit— Autrefok  Convict,  7.    Murder,  18. 


INDEX. 


001 


PROSECUTION. 

TIjo  coniliirt  of  proscputfon  in  Booking  to  indnce  a  witness  to  sujiiircss  tos- 
timony.  or  to  voluntoor  imi)rop('r  testimony,  may  bo  sliown.  People  r. 
H<tU,  857 

Withholding  tostlniony,  see  Evidence,  47. 

PROSECUTINf*  OFFICER. 

Prosecutor  not  to  comment  on  failure  of  detondant  to  testify,  see  Practice, 
18,  14,  15. 

RAPE. 

1.  Consent  of  female  ciiu.d  under  ten  years  no  defense.— Ujwn  trial 

of  iin  indictmont  for  abuse  and  carnal  knowledge  of  a  foiiialo  child 
under  tlio  age  of  ton  yoarH,  it  Ih  not  error  to  refuse  to  charge  the  jury 
that,  in  order  to  convict  under  a  count  for  indecent  assault,  the  evidence 
must  satisfy  tlu'  Juiy  that  tlu>  accused  committeil  the  alleged  indecent 
act  against  the  will  of  the  child.     Oliver  v.  The  State,  533 

2.  There  may  bo  submission  by  a  child  of  tender  years  without  legal  con- 

sent. Id. 

3.  Prosecutrix  may  be  interrogated  as  to  her  object  in  going  to  the  place 

where  the  rape  was  alleged  to  have  been  committed.  The  State  v. 
Iliirtnett,  573 

RECEIVIN(}  STOLEN  GOODS. 

1.  RECEmNO  stolen  goods  and  ('(INCEALINO  SAME  FOR  OAIN,  E^C—  pROOF 

NECESSARY.—  In  order  to  convict  under  section  23!)  of  the  Criminal  Code 
of  Illinois,  for  receiving  and  aiding  in  (;oncealing  stolen  goods  for  gain, 
or  to  ])ri'vent  the  owner  from  receiving  the  same,  etc.,  it  is  essential, 
first,  to  show  that  llu- pn)))erty  alleged  to  have  been  received  or  con- 
ceaK'cl  was  in  fact  stolen;  secondly,  that  tlieaccusoil  received  the  goods 
knowing  tli(>m  to  have  been  stolen,  guilty  knowledge  being  an  essential 
ingredient  of  the  crime;  and  lastly,  that  the  accused,  for  his  own  gain, 
or  to  prevent  tlu-  owner  from  recovering  the  same,  liought,  recoivecl, 
or  aided  in  concealing  tlie  stolon  goods.    Aldrich  et  ul.  v.  The  People. 

rm 

2.  When  the  owner  authorizra  or  licenses  another  to  receive  stolen  goods, 

and  such  other  jjorson  receives  the  goods  from  the  tiuef  knowing  them 
to  hiivo  been  stolen,  with  a  felonious  intent,  ho  will  be  guilty  of  a  felony 
in  receiving  the  proi)orty,  notwithstanding  the  license.  Id. 

:i.  Must  re  wini  criminai-  intent.— AVliero  a  defendant,  on  behalf  of  the 
owner,  receives  stolen  goods  from  the  thief,  for  the  honest  purpose  of 
restoring  them  to  tlie  owner  without  fee  or  reward,  or  the  expectation 
of  any  ju'cunjarv  compensation,  and  in  fact  inunediately  after  obtain- 
ing their  possession  restores  all  lie  receives  to  the  owner,  and  is  not  act- 
ing in  concert  or  connection  with  the  i)arty  stealing  to  make  a  profit 
out  of  the  transaction,  he  will  not  be  guilty)  under  the  statute.        Id. 


RESISTING  AN  OFFICER. 

1.  Not  necessary  to  aver  how  officer  AcrrED.— The  resiiondents  were 
indicted  for  hindering  an  olTicer.  One  of  them  pleailed  guilty,  and 
moved  in  arrest  of  judgnu'iit  for  the  insufficiency  of  the  indictment. 
Held,  that  it  was  not  necessary  that  the  manner  m  which  tlie  officer 
was  attempting  to  discharge  his  duty  should  be  averred  in  the  indict- 
ment.   State  V.  Carpenter  et  al.,       '  559 


662 


AMERICAN  CllIMINAL  REPORTS. 


2.  BtJt  it  must  be  alloKo«l  thnt  the  accused  know,  nt  llio  time  of  tin-  liiii- 
dranct'.  tliat  sucli  olHccr  wasonoof  tiio  olHiJ-rHdcHcrilicd  in  tlic  Hlatutc, 
whom  it  is  ma(Ui  a  crimo  to  hinder.  And  if  it  is  not  so  allcgod,  micli 
defect  may  Ihj  taken  advantat;o  of  in  arrest  of  judgment.  Id. 

RIOT. 

1,  Acts  wiikii  coxstititte  hiot. —  Where  two  or  nioro  persons,  acting  to- 

f^ether  without  autiioritvof  l.-iw,  use  or  tlireaton  either  force  or  violence 
accomjiiinied  hv  immediate  jiowerof  execution,  andtlierchy  disturii  tlie 
pnhlic  peiKc.  tliey  are  Kidlty  of  riot.  Snllicient  force  is  used  to  make 
out  tile  charge  of  riot,  if  tlieir  re(|iu'sts  or  orders  are  olieyed  through 
a  re!u«>nahle  fear  of  injury  to  pertjou  or  property.  I'coplc  v.  O'ImikiIi- 
liii,  hii 

2.  Testimony  of  a  general  feehnRof  alarm  and  disijuiet  is  properly  received 
to  show  that  tliu  defendants  disturbed  the  iniblic  peace.  /(/, 


ROBBERY. 

DiSTINfTION  BETWKKN  ROnilERY  AND  I.AIU'KNY  FROM  THE  PERRON.— To 
constitute  rolilu'ry.  as  tiistin^iished  from  larceny  from  the  p«'rson,  tliere 
must  Ih' force  or  intimidation  in  the  act ;  therefore,  whereathief  slipped 
his  hand  into  the  pocket  i)f  a  lady  anil  pd  his  (I ii>;er  caught  tliercin, 
and  she  felt  the  hand,  and,  turnin;^,  saw  liim  unconcernedly  lookinj:;  at 
the  hojises,  and  caught  him  l>y  tlie  coat,  which  waH  left  with  her  in 
makinfi'  his  escape,  Intd,  tiiat  the  crime  is  larceny  from  tlie  person,  and 
not  rohlu'ry,  thou>::h  the  lady's  pocket  was  torn  in  extractiuf^  his  hand. 
Fanuiiij  r.  Tlie  Sliitc,  "((il 

FlNDlNd  TARTY  (lUlI/rY    OF    TWO    OFFENSES  OROWINO  OITT  OF  A  SIN(iLE 

TRANSACTION. —  A  party  cannot  Im'  Ki'i'ty  of  rohhery  ami  of  havint;  re- 
ceived the  same  ^oods  ohtained  by  the  rohlu'ry,  knowinicj  them  to  have 
been  so  obtained,  where  there  is  but  a  Min).clc  transaction  involved,  and 
a  verdict  fitulinj^  him  ^'li'ty  of  the  robbery,  au<l  of  the  larceny  (if  the 
jijoods  KO  taken,  and  of  receivin^;  them,  knowinfi;  them  to  have  been 
stolen  or  accpiired  by  robbery,  is  inconsistent.  The  latter  olTcnse  ini- 
jmrts  a  sid)se(|uent  and  distinct  transaction  from  the  robl>ery,  iind  in- 
volv(>s  some  other  jierson  who  had  previtnisly  obtained  tlie  property  by 
robbery.     Tobin  r.  The  I'eiqtle,  650 


3. 


SEDUCTION.  . 

SOCIAI,  ATTENTIONS  NOT  STTFICIKNT  CORROnORATION — In  a  trial  for 
si'duction  under  jn-omiseof  marriaice.  evidence  of  such  social  attentions 
on  the  )>art  of  the  defendant  to  the  prosecutrix,  as  accomjianyinfr  her 
from  church,  callin;::  on  her  at  the  house  of  her  ])arents,  and  then^ 
waitiu}::  on  her  now  and  t'len  for  two  years,  is  not  fiiiflicitnit  to  corrolt- 
or.ate  the  jirosecutrix's  testimony  to  the  elfect  that  a  promise  of  niiir- 
ria^e  wits  made  to  her,  and  will  not  warr.ant  the  jurj-  in  iindinp;  that 
fact  in  the  allirmative.     Rice  r.  Com.,  .Wa 

Contrition  of  defenpant.— Where  there  is  testimony  tliat  the  <lefend- 
ant  called  on  the;  jirosei-utrix's  mother  .and  oxpn'ssed  contrition  for  what 
he  had  done,  and  deckired  his  williiif^ness  at  the  same  time  to  make 
amends  by  marry iii^j;  the  ])iosc(ntrix  after  a  time,  such  testimony  is 
not  (!viderice  from  which  a  jm-y  could  safi'ly  find  a  previous  i)romise  to 
man-y.  '  Id. 

Withhoi.dino  testimony  ry  prosecution.— Failure  on  the  part  of  the 
prosecuti<m  to  call  the  father  of  the  pnwetaitrix,  w1k»  was  ja-esent  at 
the  convei-sation,  to  testify  to  i)artit  ulars  thereof,  was  a  ciriainist.inc(! 
which  would  have  justified  an  inference  unfavorable  to  the  nrosecu- 
tion,  and  the  court  woukl  have  been  warranted  so  to  instruct  the  jury. 

Id. 


INDEX. 


(503 


4.  STATRMr.NT  TO  THIRD  PRRSON.— Testimony  of  a  convcrHiitioa  l)ctw(H«n 

tilt'  (li'lcuiliint  iiii'I  a  thiril  luTHon,  in  tlit«  coursi'  of  wiiich  tlio  defurt*!- 
ant  wild,  in  nfVrnnci'  to  tlic  matter  in  liaiul,  that  "  iii!  would  K've  $'HM 
to  Hcttlf  it,  and  no  more;  that  ho  Wiw  guilty  of  tho  mmc,"  wiw  not 
ovidi'nco  of  a  promist!  of  maniagc.  Id. 

5.  Conviction  I'oii  roRVicATioN.— Wliile  the  evidonce  did  not  warrant 

a  conviction  for  seduction  tinder  promise  of  marriage,  yet  a  eonvit'tion 
for  fornication,  etc.,  niigiit  Iju  sustained inulorthe  same  indictment.  Jd, 

-SENTENCE. 

1.  EimoH  wnicii  AFFF.rrs  skntenik  only.— Tlie  failure  of  tho  circuit  judge 

to  aHk  a  prisoner  convicted  of  nuirder,  "  If  he  hiut  anything  to  say  why 
Judgment  should  not  be  iironounced  on  him,"  is  error,  and  reiiuires  a 
resentence,  although  the  prisoner  did  not  demand  that  tliis  (luestion 
Hliould  1)0  anked.  But  as  this  error  alfected  the  sentence  only,  tho  pris- 
oner is  not  entitled  to  a  new  trial.  Init  nuist  be  resentenced  after  being 
BO  iusked.    State  v,  Tirzvrdiit,  W(\ 

2.  Sr.NTKNCK  ON  CONVICTION  ON  sicvKUAi,  CHAUUKS. —  When  a  i)risoner  wa.s 

adjudged  to  be  imprisoneil  for  three  several  tt'rms  of  ono  hundred  and 
eighty  d.-iys  ea(!h,  without  any  specification  as  t(»  the  time  of  iM-ginning 
or  ending  of  tiu;  two  hust  ti'rms  of  imprisonment,  lield,  that  he  could 
not  lie  imprisoned  for  a  period  exceeiling  that  of  a  single  sentence; 
lirlil,  idsn,  thut  there  would  be  !io  error  in  a  Judgment  making  one  term 
of  imprisonment  commence  when  iinother  terminates.     In  re  Juclcmm, 

rm 

;{.  Procf-ss  op  commitment  CANNOT  ENi.AROR  RECORD. —  All  process  aftcr 
Judgment  must  jmrsue,  but  cannot  be  used  to  vary  f>r  control,  tho  judg- 
ment. And  memorandum  upon  the  commitments  cannot  be  resorted 
to  for  tho  [>uri)osc  of  enlarging  what  the  court  haa  solemnly  adjudgod. 

Id, 

STENOGRAPHER. 

See  Evidence,  10,  17. 

SUNDAY. 

1 .  The  courts  take  judicial  notice  of  tho  day  of  the  week  a  certain  day  of 

the  month  camb  on.    Robinson  w  State,  570 

2.  SAnnATil  BREAKiNd  —  INDICTMENT   FOR. —  The  cliarging  ])art  of  an  in- 

dictment for  Sabbath  breaking  must  show  that  the  offense  was  com- 
mitted on  sortie  Sunday,  though  the  particular  Sunday  is  not  important. 

Id. 
See  Intoxicating  Liquors,  5. 

THREATS. 


UNCOMMCfNICATED  THREATS  ADMISSIBLE  UNDER  CERTAIN  CIRCU5IRTANCES. — 
In  a  trial  for  homicide,  where  the  ((Uestion  is  ;is  to  what  was  decca.sed's 
attitude  at  the  time  of  the  fatal  encounter,  recent  thre.its  may  become 
relevant  to  show  that  this  ;ittituile  wiis  one  hf)stile  to  the  defendant, 
even  though  such  threats  were  not  communicated  to  defendant.  The 
evidence  is  not  relevant  to  show  the  quo  auinio  of  the  defendant,  but  it 
may  be  rel<>vant  to  show  that  at  the  time  of  the  meeting,  tho  deceased 
was  seeking  dofiuidant's  life.     Witjoiiut  v.  People,  494 

C!onditional  threats  made  by  the  prisoner  are  sometimes  admissible.  The 
State  V.  Adams,  393 


<](I4 


AMERKJAN  CRIMINAL  REPORTS. 


TRESPASS. 

Breaking  partition  fenck.— A  person  cannot  bo  ronvictod  of  niisilc- 
moanor  for  knocking  a  hoanl  off  of  a  jmrtition  fcnci',  l)('t\v('(>n  llu- 
lots  of  hinisolf  and  tlic  i)r()si'(iitinK  witness,  and  Ihc  coinnion  prnp- 
erty  of  both.  Bnt  it  seems  that  to  pnll  down  and  destroy  it  would  Ik- 
criminal  trcspitss.     Drees  v.  The  State,  5T1 

VARIANCE. 

MiSNOAIER  —  NaM!i;S  OF  PARTIES  TO  PUOCKKOINCiS  IN  Wlliril  THE  FAl.SK 
OATH    WAS    TAKEN    ON  TRIAI,  OF  AN    INDICTMENT   FOR   t'EIMlHY.— Tin 

names  of  tlie  parties  to  tlie  proceediiij^s  in  wliicli  lh(»  fnlse  oalh  wns 
alleged  to  lja\o  lH>en  taken  are  essenliid  to  its  identity,  ami.  il'  incor- 
rectTy  stated,  the  varianee  is  fatal  to  the  prosecution.  JaetihH  r.  Thr 
State,  Km 

See  Arson.   "Adjoinino,"  "  Adjacent,"  etc.    Rhihery,  4.    Indictment,  "i. 
Lar(;eny,  5,  6. 

VENUE. 

1.  Venue  must  be  proved  as  laid  in  the  inpictment. —  No  prin(i|)le  is 

better  settle<l  than  that  in  a  (Timinal  case  the  veinie  must  be  proved  as 
laid  in  the  indictmod.  It  is  as  important  to  prove  that  the  olfease  \va< 
committed  in  the  county  where  it  is  charj;t'(l  to  have  tu-en  coiiimitteil, 
as  to  j)rove  that  the  defendant  committt'd  it.     The  Slate  v.  Jlartiidl. 

2.  Proof  of — Proof  of  veniie,  like   any  other  fact,  may  be  jiroved  by 

<lirect  or  indirect  evidence,  but  it  nuist  be  t>slablished  eitiicr  i»y  the 
one  or  the  oilier.  Jil. 

S.  It  nnist  be  proved  beyond  a  reasonable  doubt.     J^ooJiH  r.  State,  .|s:i 

4.  False  iretenses  — Peace  of  thiai,.— II.  wrote  and  jiosted  at  X.,  in 
Enjj;la!iil,  a  letter  ad<li'cssed  to  ( <..  at  a  place  out  <>('  I'in;;land,  eunlaininu' 
a  false  pretense,  by  means  of  wliicli  he  ('randulciitly  induced  (i.  lo 
transmit  to  N.  a  (iral't  for  1.")!)/.,  which  he  tliere  cashed.  //(/(/.  thai 
there  was  juiisdict ion  to  try  II.  at  N.  ;  that  the  pretense  was  made  ai 
N.,  where  idso  the  money  ohtaineil  hy  nu'ans  of  it  was  n'ceived.  Tin' 
Queen  v.  J  lot  men,  .V,)! 


VEROKT. 

1.  \  Roneral  ver<lict  of  K"'bv.  upon  an  indiclmeiil,  is  a  tinding  only  of  the 
facts  sutHciently  jileailed.     Coin,  i:  ^fol>re,  'SW 

3.  Alternative  I'lNisiiMENT  —  KiNE  ou  imi'iusonment,  or  both.— AVIkh 

a  statide  provides  an  allernati\(' pnnishment  for  an  (id'en^e.  and  rnillirr 
provides  that  the  Jury,  in  rendering'  a  verdict  cf  jiuilt\'.  viliall  "  lix  llic 
deuree  of  putushmi'Ut  to  he  iidlicied.  inilcsn  the  ..■niK'  lie Ji.nil  hi/  Imr." 
tite  Jury  must  he  instructed  and  rci|uii'ed  to  lix  (lie  kind  and  exteiil  nf 
th(^  punishment  within  the  limits  prescribed  liv  the  law.  Ilernui  r. 
The  Com..  '  •j;iS 

;(.  (lENEKAli  VEUDU'T  oFOiil.TV. —  It  Was  error  for  the  court  to  receive  a 
H'cueral  verdict  of  "^•uilty  as  chart;(Ml  in  the  iudii'tmeut,''  and  assess  a 
line  thereon.  Jil. 

4.  Same  —  When  good. —  (in  an  indictment   for  receiving;  stolen  jiroiierlv. 

and  also  for  aidiuf;  in  its  conceahiu'ut,  char;;-ed  in  two  sepai-atc 
count.f,  both  of  which  ri'lati-  to  bid  one  and  the  same  transaction,  the 
imnishment  for  e;i<'h  otl'ense.  even  if  distinct  ones,  he! ni;  the  same,  a 
genin-al  vt^rdict  of  f;'dlty  is  pxmI.  and  will  sustain  a  Judgmeid  inlliit- 
ing  a  single  punishment.     Campbell  v.  Tlte  People,  ^;W 


INDEX. 


■|s:l 


Not  finding  tiik  ukorkk  ok  thk  okfensk. —  Uiulcr  a  statute  which 
niiikcs  tht*  lull  of  «'xc(![>ti<)ns  part  of  tiio  roionl,  iinil  it  apjjeaxs  that 
tln!  fharj^t'  was  iimrdiT  in  tlu^  lirst  tk-^^rci-;  that  tho  evidence  waa 
of  (hat  (It's^Tcc!  iinil  no  otlu-r;  and  that  no  (iiifstion  was  raised  iia  to  tho 
decree,  la general  vi-rdiet  of  minder  will  bo  sulliiiently  certain  aa  to  tlio 
degn-e.     Stdfe  r.  Jiiizztll,  410 

Where  the  Jury  is  polled  in  a  murder  ciuse,  it  is  the  duty  of  each  juror 
to  say  for  himself  whether  he  tiiids  the  prisoner  guilty  of  muvdvr  in. 
tlicjirnt  or  scvoiKldiyrir.     WilliantH  v.  I>''iifc,  415 

Hach  .HKoit  Mi;sT  dksionatk  1)I'.<iI{EK.—  When'  the  response  of  each 
Juror  in  such  case  is  simply  "guilt}',"  without  a  designaftioii  of  the  de- 
gree of  guilt,  such  verdict  is  a  nullity.  And  the  fact  that  the  clerk, 
imniediately  after  polling  the  Jury,  called  ui)on  tliem  to  hearken  to  the 
verilict  an  thecoint  had  reconled  it  —  "your  foreman  saitli  that.!.  W., 
tlu!  prisoner  at  the  liar,  is  guiliy  of  nunder  in  the  first  degree,  and  so 
say  you  all "  —  does  not  alfect  the  (HU'stion.  /(/. 

In  i.auchsy  and  UKCF.lVlNti  SToi.F.N  (JOODS.— There  cannot  he  iniitris- 
orunent  in  the  penitentiarv  for  the  olfense  of  receiving  projierty  ob- 
t:i!;it'd  by  robbery,  unless  tlie  value  of  the  propi'rty  e.\<'eeds  Sjil");  and 
to  authorize  such  pTuiishment  the  verdict  of  tlu*  Jury  nuist  find  the 
\alue  of  till'  i)ro))er(y.      Tnhin  i\  The  I'ctijile,  ,>'},') 

Vkukict  (»f  f.i.f.vf.n  TKitsoNS  IN  cAi'iTAi,  CASF,  A  NrM.iTY.— The  con- 
stitution guaranties  a  Jury  of  t\velvi>  men,  the  conunon  law  Jin-y.  and 
t!ie  rigid  to  l)e  tried  for  crime  by  a  jury  of  that  number  is  not  a  mere 
privilege  of  the  prisoner,  but  a  legal  re(|uirement,  which  cannot  be 
ehanged  by  tiie  consent  of  the  prisoner.  The  verdict  of  eleven  jin\v- 
men  in  a  capital  case  is  a  nu-re  indlity,  and  any  Judgment  rendered 
tlieri'on  ag.iinst  the  prisoner  is  withont  jurisdiction  and  vt)id.     Tvrri- 


idi-ji  V.  All  Willi  (iikI  All  )'<)!, 

l''inding  defendant  gtiilty  of  two  oirenscs 
tion,  see  HoiUtKKY.2. 

See  IXSTUUCTIOXS,  7. 


574 
growing  «)ut  of  a  single  Irausac- 


4. 


WITNESSES. 

Undku  Till'.  lU'M'.  —  KiuiiT  OF  ((»iNSF.i.  TO  CONSULT. —  It  is  error  in  a 
criminal  case  for  the  court  to  I'cfuse  to  allow  counsel  foi  the  ■•iccused 
to  considt  his  witnesses,  for  no  other  reason  than  that  they  have  been 
put  under  the  rule.     Allm  r.  The  Sliili;  2i\2 

To  lU".  SF.PAUATF.P. —  l{es|)ondent"s  rei|nest,  in  a  case  of  homicide,  that 
the  witnesses  may  be  exanuned  separately  and  not  in  oiu^  another's 
presence,  should  be  grantetl.  if  seasoiiidtlv  made.  Tliv  J'coplf  v. 
Hull,  '  :!57 

STATITI'.    WIIUII    KF.MOVKS    I'OMMON    LAW    DISAIIIMTY   OF,    NOT    F,X    I'OST 

FACTO. — Statutoiy  alti'rations  which  do  imt  increase  the  i>uiiishment, 
nor  change  tht>  ingreilients  of  the  otVens(>  or  tlie  idtinnde  l.icts  neces- 
.sary  to  establish  guilt,  and  which  only  remove  e.\i^ting  restrictions 
upon  the  competency  of  certain  classes  of  persons  as  wit nesse;;.  i-elate 
to  modes  of  pro<'ednre  oidy,  in  which  no  one  ciui  be  said  to  have  a 
vested  right,  and  which  the  state,  upon  grounds  of  public  policy,  may 
ri'gnlate  at  pleasure,     llopt  r.  lliili.  '      417 

DlSdUF.lUF.NCK  TO   Uri.l-:  SKl'AHATINO.   KF.NDF.ItS  WITNESS  (M'lf.TY  OF  CON- 

TF.MI'T,  HIT  NOT  INCOMIM'.TKNT.— While  we  thiidv  it  a  sound  rule  of  prac- 
tice, in  putting  witnesses  under  the  rnle,  to  swear  all  of  them  on  both 
sides  and  sfnd  them  out  of  hearing  until  called  to  testify,  still  we 
know  of  no  law  which  renders  a  witness  incompetiMit  because  he  has 
heard  some  of  the  testimony  on  the  side  opnosed  to  that  on  which  he 
was  i-alled.  It  might  be  a  groimd  to  atla<h  theVitness,  but  not  to 
exclude  him.     Honks  i:  Sddi',  48:5:  I'cople  t:  W LauijIiUn,  54s) 


666 


AlVIERICAN  CRIMINAL  KEPORTO. 


Arrkst  op  defendant's  witnesses  in  presence  of  jury.—  It  is  en-or 
for  the  court  to  order  the  arrest  of  the  tlcfendant's  witnesses  in  tlie 
presence  of  the  jury  before  whom  they  liave  just  f^iveu  tlieir  testimony, 
and  to  have  them  then  and  there  arrested  on  ac(;ount  of  wliat  tliey 
have  testified.  To  do  so  amoimts  to  an  intimation  from  the  bench  that 
their  evidence  is  false.    Burke  v.  The  State,  579 


WRIT  OF  ERROR. 
SeeAppFAL  AND  Writ  ci  ■  Error. 


T 


;ky.—  It  is  eiTor 
witnesses  in  the 
tlieir  testimony, 
It  of  wJiat  tliey 
u  the  bench  that 
579 


